CAPD CUE review

[blahsaysme2u]

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 April 17, 2020 by blahsaysme2u

[blahsaysme2u]

20 hours ago, Berta said:

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

Cover C file # name , prior to scanning it.

 

 

just wanted to see if you had a chance to look it over and get your thoughts Berta!

thanks

 

[Berta]

I feel my opinions have been  based on a lack of the factual evidence....

However I did mention two of the regulations I believe they broke and/or did not properly consider.

As you wait for your C file, I suggest you go over the CUE forum, where there are templates there for filing a CUE.

What you wrote is too long.And they will need the date of the decision you are filing CUE , as well as a copy of it.

I will try to find a template for you.

 

[Berta]

This is  a basic template from  my 2003 SMC  CUE claim:

 

"To whom it may concern:

 

This is a claim of clear and unmistakable error, ( CUE) under auspices of , 38 USC, 5109A.

 

I believe that VA erred in the lack of application of 38 USC 1114 regarding the above veteran’s entitlement to SMC. Although M21-1,Part 6 provides that SMC will be considered and rated as it is an inferred issue for any claim with SMC potential, VA failed to consider a retroactive award of SMC in adjudicating the veteran’s Section 1151 , which I re-opened after his death.”

 

( I referred to and enclosed copy of the SMC statutory mandate,I also enclosed the 1998 DIC decision I received, that the CUE was in ,I enclosed the M21-1MR  SMC part. also a copy of 38 USC 1114 and also I enclosed the veteran's posthumous 100% SC P & T PTSD award.)

 

“100% SC plus over 60%SC of an independent system (under 1151) equals SMC.” Basic VA 101.

 

(I also stated the CVA ratings and diagnostic codes were wrong...they rated the CVA at 80% in 1998 and then awarded 100% under 1151 for the CVA in 2012, as well as the SMC Housebound award..

It was all on one page with reference to the evidence I enclosed.

 

The medical evidence had been established and the VA committed errors in the 1998 decision that manifested an outcome that was detrimental to me until they fixed it in 2012.That is they fixed some of it- I have 2 CUEs pending on their final decision.

 

State the first sentence:

This is a claim of clear and unmistakable error, ( CUE) under auspices of , 38 USC, 5109A.

Then state what regulations they broke ,or failed to consider in the enclosed ( date) VARO decision.I dont know what thread I put them in-ad I was guessing because we dont know what the decision says

You could state that they did not give you an adequate C & P due to the wrong diagnosis and that might have triggered the wrong diagnostic code- if so ( you would need to see the rating sheet from the decision) and tell the what the appropriate DC code is.

(you  should go to the BVA web site and do a search for CAPD and there might be a diagnostic code there.)

And tell them exactly what medical evidence had in their possession, and refer them to it as enclosed, that warranted at least a 10% rating.

If I were you just save this tentative template until you get your C file.I am certainly guessing here yet it shows what a valid CUE claim needs. You  should also read the info in our CUE forum.

 

 

 

 

 

 

 

 

 

 

[blahsaysme2u]

1 hour ago, Berta said:

I will try to find a template for you.

 

THIS IS OUT OF THIS WORLD! BERTA YOUR THE BEST!!!!!

thank you so much. when i get my C File ill update you. 

just side note- i had not been diagnosed with anything when i file claims before for hearing problems. i submitted the claim as a hearing loss claim both in 2008 and last year when the DAV was helping me. that was before i found out about CAPD and got my diagnosis just this month. so really all the VA had was the c&p hearing exam they scheduled me for, that i passed, and me giving the symptoms to the audiologist. i would wager a milkshake the examiner probly didnt even mention my symptoms and jsut sent the test results to the adjudicator. if thats the case, do you think that would deflate my case for CUE?

 

[Buck52]

Roger That blahsaysme2u

I don't know that much about your a D O. ..>(CAPD)

My problem is can't understand what people say, but thats because of my bad hearing , I hear but can't make out the syllables  to put a sentence together.  I have 80% hearing loss 10% tinnitus   90% combined rating for TDIU P&T  & 70% for chronic combat PTSD  and  SMC S & K

Good Luck to ya getting this SERVICE CONNECTED and a fair rating.  Going back to 2008 be a pretty good hunk of change.

I think you can win it  with CUE.

Just be careful and don't say to much get right to the point you want to make  & make sure you have the medical records to back you..,they do not like to read  long drawn out war stories. or just long drawn out lay statements...those need to come from the Specialist Dr's

They do look for ways to deny.

[blahsaysme2u]

3 minutes ago, Buck52 said:

Roger That blahsaysme2u

I don't know that much about your a D O. ..>(CAPD)

My problem is can't understand what people say, but thats because of my bad hearing , I hear but can't make out the syllables  to put a sentence together.  I have 80% hearing loss 10% tinnitus   90% combined rating for TDIU P&T  & 70% for chronic combat PTSD  and  SMC S & K

Good Luck to ya getting this SERVICE CONNECTED and a fair rating.  Going back to 2008 be a pretty good hunk of change.

I think you can win it  with CUE.

Just be careful and don't say to much get right to the point you want to make  & make sure you have the medical records to back you..,they do not like to read  long drawn out war stories. or just long drawn out lay statements...those need to come from the Specialist Dr's

They do look for ways to deny.

thats CAPD sir! except my hearing is fine. just sounds muffled or words and syllables dont make sense. 

 

this is the best way i can describe it

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

this video i found last year is also a great example of what CAPD is like when there is competing background noise or live music(or even the radio sometimes). its also very mentally draining.