CUE or Reopen/New Evidence

[Justaskpat]

This is regarding TMJ. I was broadsided in an auto accident in 1991. Shortly thereafter TMJ began with the main point of joint dislocation being on my left which is the side of my head that hit the door. At retirement, TMJ was one of the disabilities I was to have a C&P appointment for. I had all my other appointments, but never received any notice about the TMJ appointment. When I received my decision, TMJ was denied due to my not showing up to the appointment. As evidence, the VA cited a "Notice of failure to Report for C&P Appointment" . I contacted the VA at the time to advise I'd never received either the appointment letter or the Notice, but the VA stated the matter was closed.

Recently I went to my local VA Rep for copies of something else and I mentioned the TMJ matter and asked for copies of the appointment letter and Notice of failure to Report. He looked everywhere and could not find either document, nor could he find mention of the appointment being set or the dentist it had been set with. I believe now that neither document ever existed because they were somehow not generated or sent out. My military dental records show me being evaluated for TMJ and months later a nite guard being made.

My question is which is the best way to approach it?

Should I do a CUE, that my records were missed or ignored due to the extenuating circumstance of the appointment letter and Notice never being generated and the VA refusing to reschedule.

OR

Should I do a "Reopen with New Evidence" stating (the new evidence is) there is no record of either document in the VA files and that my dental records show TMJ.

Either way, I'm shooting for the TMJ award to be retro to retirement.

thanks

[Vync]

If it exists, it is probably in your claims file at the VARO, not locally. If your local rep is accredited, he may have access to VBMS. I'm not certain if that includes access to your claims file. Start by requesting a copy of your claims file from the VARO. You can also go and view it in person, but many want you schedule an appointment vs. just showing up unannounced.

CUE requests are pretty strict. You have to show black and white evidence which contains no grey area. Either the TMJ C&P appointment letter is in your file or it is not. If present, the VA will assume the presumption of regularity applies. That means government employees are assumed to have done their job properly (i.e. letter present in your file means it was a copy of what they sent). However, if it is not present in your file, you might have a CUE.

You could also just file a claim to get it SC. You have evidence of the accident and follow up care in your service treatment records. As long as you have a current diagnosis, the C&P doc would probably have no problem granting SC. Once SC, you can file a supplemental claim requesting an earlier EED based on when you initially filed. Given the duration of time since then, you can expect the VA to try to fight it.

I'm not a CUE expert, but am learning. I hope this helps!