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blahsaysme2u

Question

below is my personal statement for my hearing loss. i beleive this might be a CUE and have outlined in my statement why i belive that. if anyone has any input on this i greatly appreciate your help! please if you have any follow up questions regarding my denials etc let me know

tahnks again in advance

PERSONAL STATEMENT:

I started having these symptoms after the IED explosion I was involved in while serving in Iraq, which I suffered a mTBI (please refer to the provided personal statement regarding the event). Before the event, I was a good student in school, usually getting A’-B’s, and never presented or was diagnosed with any attention-deficit/hyperactivity disorder [ADHD], language impairment, and learning disabilities. None of the other symptoms misunderstanding or difficulty “hearing” movies, songs, etc. presented them selves until 2008, after the event.

During my tour in Iraq (9/2017 -4/2018), I was also exposed to a fuel known as JP8. We used multi-fuel vehicles during our convoy missions, and JP8 was the primary fuel we used. I was exposed to JP8 at least 3 times a week (as many as 5x) during this period for missions that lasted from 8-12 hours depending on the trip. Fueling was done before and after each mission which could be as long as an hour of waiting and fueling before the mission and sometimes as long as 2 hours after a mission; exposure to JP8 fumes during this period as well as the exhaust during the missions. On long missions that required return of the same convoy we came with, we also would fuel before the return trip.

The symptoms I have are listed below:

·        difficulty understanding or following conversations with competing background noise

·        problems understanding dialogue on tv or in movies (often requiring use of closed captioning)

·        struggle to understand or make sense of song lyrics (misinterpreting whole phrases and cannot hear the correct phrase even after being told what the actual lyrics; i.e. “Wild Thoughts” by Rhianna(thinking the chorus that contains the same name as the song is saying “When I'm with you, all I get is why-thos”) and “Got Whatever It Is” by Zac Brown Band (thinking the chorus that contains the same name as the song is saying ”she goggle pennants” and the phrase “you got whatever it is” is saying “gobble gebble goo”)

·        confusion of names of people with who I have had long relationships with close alternatives names that are not correct (i.e. Diana and Deanna, Sidney and Cindy, Micaiah and Mikala)

·        strain to locate direction of sounds, in silence and with background noise

·        difficulty following conversations that are rapid fire or fast speakers

·        Frequent requests for repetitions, saying “what” and “huh” frequently

·        Misunderstanding for sarcasm or other tone and sentence cadence that give clues to speaker’s intent, which result in Inconsistent or inappropriate responses

·        sounds like listening to through water

·        difficulty understand children (while others around me understand them and help me with grasping what is being said)

·        feeling exhausted from listening

The symptoms I have experienced do not equate to an organic hearing loss (outer or middle ear or hearing loss at the level of the cochlea or auditory nerve) that can be detected by standardized puretone audiometry frequency and speech discrimination testing I have had done in the past. All my hearing tests done by the VA and from my outside audiologist reflect normal organic hearing along with undamaged structures in my ears. This lead me to seek out another explanation for the auditory problems I have been suffering with that eventually pointed to CAPD.

The VA has provided information and studies that have linked blast injuries to CAPD. JP8 was also linked in the disorder (please see below links to VA websites provided information). With these clear connections, my exposure and injuries, my symptoms and the clear diagnosis by a licensed audiologist the obvious link to service is distinct.

I also have been reporting these problems since 2008 when I first filed a claim for hearing loss. I described these symptoms to the VA audiologist at that time with no mention of CAPD as a possibility. A normal standardized puretone audiometry frequency and speech discrimination hearing test was done that showed no discernable hearing loss and my claim was denied. I again put forth a claim in January 2019, saw the VA audiologist, described the symptoms above and the result was a normal standardized puretone audiometry frequency and speech discrimination hearing test was done that showed no discernable hearing loss and my claim was denied again. This is a “Clear And Unmistakable Error” by the VA in their “duty to assist” me as the veteran in my claim of hearing problems. Regardless of how and what label is used to file a claim, the claim should be evaluated by the symptoms reported by a veteran, and if further testing or examinations are needed, it is the duty of the VA to provide these. The correct facts were therefore not before the adjudicator, resulting in a denial of claims based on the facts provided to the adjudicator at the time of review. This is not an argument or disagreement with how the facts were weighed or to correct and an earlier diagnosis to CAPD, but rather the fact that the VA failed to assist me as the veteran to have the correct examination/testing based on my reported symptoms during the C&P (Compensation and Pension) examinations and hearing testing and get those results before the adjudicator is an undebatable error. If the correct facts would have been provided, a clear service connection for CAPD would have been given in 2008. -§3.159  Department of Veterans Affairs assistance in developing claims(c)(4)

 *****UPDATE****

DID NOT FILE CUE BASED ON DTA. PLEASE READ THREAD TO SEE BERTA EXPLANATION ON WHY THIS IS NOT VALID! BUT MAYBE CUE FOR OTHER REASONS. STILL PENDING AS OF 4/17/2020

Edited by blahsaysme2u
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Did you have a different post here somewhere in this topic?

I replied hours ago but cannot find my reply- the weather has affecting my PC-

CAPD is certainly a possible  result of a TBI.

I think you had mentioned that the Hearing loss and tinnitus claim had been denied-but you have been diagnosed since with CAPD.

You stated :"This is a “Clear And Unmistakable Error” by the VA in their “duty to assist” me as the veteran in my claim of hearing problems"

But CUE cannot be filed on Duty to Assist.

If I recall the post this AM that I replied to- Buck gave you good advice as well - and since you have been diagnosed with a different disorder, perhaps whoever diagnosed the CAPD would help you with an IME,to support a new claim. Maybe they already gave you the test Buck mentioned and with proof of the TBI, they would hopefully award the new claim. without need for an IME.

I believe Buck said you needed to take the Maryland CNC test that has a part for speech discrimination.

This vet succeeded in a APD  ( CAPD) claim due to his TBI:

https://www.va.gov/vetapp18/files5/18103745.txt

In your case, if you can successfully prove the CAPD ( APD) to a ratable level, then perhaps you could CUE them on the older decision with this statement from established VA case law:

"The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) "

https://www.va.gov/vetapp12/files5/1233247.txt

Veterans cannot be expected to know what the actual diagnosis of their conditions is. But a CUE for that would be dependent on an award first, due to a new claim .

Did the VA give you a Rating perecentage for the older claim for hearing loss/tinnitus?

If so they probably gave you the wrong diagnostic code as well.

Wrong diagnostic codes can be CUED  if they caused a detrimental affect to the veteran, and tthe proper DC would involee at least a 10 % rating.

 

 

 

 

 

 

 

Edited by Berta
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yeah see i thought i had posted this earlier this morning but i was up very late and now i cant find the post? 

if you and buck responded, i am sorry bc i didnt get to read them? maybe someone deleted my post for some reason? or maybe i accidentally did hahah who knows. 

anywho- i have 0% tbi rating with 50% ptsd. i have 10% for tinnitus but they denied my claim for hearing loss because i passed all my hearing tests, even though as i stated above, i gave them the symptoms for CAPD. i didnt know that Duty to Assist is not a CUE. i must have misread that somewhere. ill remove that from my statement. i guess i am confused though. is the below saying that the VA failed at assisting in the claim:

Quote

 

In your case, if you can successfully prove the CAPD ( APD) to a ratable level, then perhaps you could CUE them on the older decision with this statement from established VA case law:

"The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) "

 

what is the actual argument above if not duty to assist? i have a diagnosis from an outside audiologist that i am paying for because the VA medical center here in Roanoke does not have CAPD testing and wont send me to the community for it(i am not sure to the exact reasons why but i decided not to fight it and just pay for a diagnosis myself) so now i am trying to figure out the next step in the process of my denied claims. i dont want to just appeal on "new medical evidence" since this has been an ongoing problem since 2008 when i filed my first claim for hearing loss. i wish i had kept appealing back then but i was young kid then and didnt know what i was doing or how important all this would be. 

so with all that being said, you think i should appeal first and then do a CUE or can i just file a CUE straight out the gate and cite the clemons v shinseki? and again for clarification, what is the argument i would use for CUE? 

thanks so much for your help!!!!!!

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"The February 1993 examination is incomplete for VA rating purposes because no speech discrimination scores were provided. For VA purposes, audiometric examinations are to be conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. See 38 C.F.R. § 4.85(a) (2015). Similarly, a private treatment record of August 2000 states, "The audiogram done on this date indicates severe high frequency hearing loss," but no audiogram for that date is of record."

https://www.va.gov/vetapp16/Files5/1637938.txt

Now I am wondering if you should file CUE on the older denial:

 

4.85 Evaluation of hearing impairment.

(a) An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids."

https://www.law.cornell.edu/cfr/text/38/4.85

You could claim violation of CFR 4.85 As above . if they did not due the Maryland CNC test, and use as well the excerpt from Clemons V Shinseki above.

Can you scan and attach here the denial and the evidence list they used ?

Cover C file # name , prior to scanning it.

 

 

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I think we were both on line at same time- per your last question----but I am giving advice without knowing what the original decision said, and hope you can scan and attach it- or maybe best yet ask your Vet rep- who seems to understand CUE  well, should consider filing CUE on the older decision.

The citations I gave are the argument for CUE- Clemons V Shinseki-you would need to read Clemons V Shinseki and send the VA that decision  highlighting the above quote from it- there might be further help in the decision.

The citation for 38 CFR 4.85 can be copied and highlighted as well,  as evidence.

These are two violations the VA might have committed in the denial. Maybe your vet rep would agree.

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thats the thing though. they did do the puretone and the "speech discrimination" but those test are not suitable for CAPD. i had to go through a battery of tests to get diagnosed. so i dont think they failed on that part. my argument was after they heard my symptoms did not correlate to actual hearing loss but to CAPD, they should have sent me for that specific C&P exam.

this last time i specifically asked the audiologist to why they were using puretone test again bc i didnt think there was an actual issue with my hearing and gave the symptoms above. i asked her about testing me for CAPD and she said that i put in my claim as hearing loss and thats all she could test me for. that i need to submit a claim for CAPD if thats what i am claiming. 

but thats why i am saying i think this is a CUE because i dont believe that is the case, and based on the case law of clemons v shinseki you posted above, i it looks as thought i am right. but i dont know what actual CUE argument to use? below is what i have been basing my arguments of CUE off of:

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

Quote

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. 

  • (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
  • (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
  • (3) the error is "undebatable;" and
  • (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

 

 

 

 

 

 

Edited by blahsaysme2u
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