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

[Buck52]

Well I don't have that  CAPD and I too have those symptoms.

I don't ever remember hearing a case like this  if its not a hearing problem.?

I would think it lies in the TBI Area  for you ?

if you have a TBI you may want to check out all those symptoms too? 

[blahsaysme2u]

1 hour ago, Buck52 said:

Well I don't have that  CAPD and I too have those symptoms.

I don't ever remember hearing a case like this  if its not a hearing problem.?

I would think it lies in the TBI Area  for you ?

if you have a TBI you may want to check out all those symptoms too? 

it is very closeley related to TBI. but also the VA has shown relation of exposure to JP8. i have both. so double wammy. 

https://www.research.va.gov/pubs/docs/va_factsheets/HearingLoss.pdf

https://www.research.va.gov/currents/spring2014/spring2014-11.cfm

 

[blahsaysme2u]

On 12/16/2019 at 1:38 PM, Berta said:

You  should also read the info in our CUE forum.

oh trust i have been reading till my eyes hurt. thank you agian for your insight. your so selfless in helping all us vets. its so refreshing to not feel hopeless or alone fighting this bull marlarky .

can i pick your brain about IMO too:

i paid to see an independent doctor to help me get a diagnosis of CAPD because the VA doesnt have any audiologist that can test for this disorder where i live. the denial for my claim is based on no diagnosis for this disorder and how i filed the claim (hearing loss).the VA said i didnt show any "hearing loss" 

my question is:

i have the IMO from the dr giving my diagnosis and using the correct phrasing for nexus to my service. but they did not review my entire medical record, only records pertaining to this specific claim(ie hearing tests done by the VA) and since i dont have a copy of my c-file yet, as i just requested it a few months ago. is it really necessary to have her review both of these when she is not disputing the VA tests, but that they didnt perform the correct tests? does she need to see my whole record when only audiology is significant to her IMO?

do they have to say they "reviewed all records" or can they say they reviewed relevant auditory records? again i hate to ask her to review my whole record when just the puretone testing done by the va was reviewed. plus she did her own puretone testing. 

also im afraid if i dont put in as CUE, but submit my IMO with a correct diagnosis, they will think this is a new claim;or not related to the original hearing loss claim i submitted in 2008 and again last year.

the original claim i put in was for "hearing loss". it is not really hearing loss but at the time i didnt know about this disorder and just knew i was having hearing problems and put hearing loss . i did report symptoms of hearing problems during my C&P exam. so since i incorrectly identified my disability, the VA or the C&P examiner(not sure which-ill know once i get my C-file), ignored my description of symptoms and rated me based on the puretone hearing test-of which i passed because my ability to hear noise at the proper decibels is fine. so i am worried that they are going to say that even though i am diagnosed properly now, the previous claims i put in for "hearing loss" dont count and i need to submit a new claim for CAPD(not being able to use the effective date of my original claims). 

hope all that makes sense

[blahsaysme2u]

just wanted to give an updated on how i am going to proceed.

i went to an outside audiologist because the VA audiology department "says" there is not anyone within a reasonable distance(there is a research department that has done all the links to JP8 and blast injuries/TBI to CAPD) in Oregon, and no one in the community care system they can send me to. so i paid for my own specialist. she reviewed all of the va research done and wrote me IMO as well as gave me a DX saying "at least as likely as not"  was secondary linked to JP8, TBI and the IED blast i was involved and "much more likely than not with the synergistic effects of all three on auditory function". 

i have decided to submit this as a secondary claim to TBI and hope that they give me the effective date of when i submitted the original claim for "hearing loss" based on the description of symptoms i gave back then. i think this is the advice Berta gave that is quoted below, that i need to have "an award first,due to a new claim. i think this might be my best shot at getting it service connected and then if they dont give me the effective date, i will appeal for higher level review with the information that Berta gave me. if that fails i will submit a CUE based on the case file she linked me to. (quoted below)

at least this is a plan. and thats the best i can hope for. before i was just lost and confused on what to do.

thanks again to Berta and Buck. you 2 have been so patient and helpful. i hope this info helps other vets that are struggling to get this DX and SC as well.the VA is dragging their feet on this even though they acknowledge the injuries and connection to service. heck they even gave me hearing aids last week bc "although we cant help you service connect you for benefits, we can treat you and help you manage this disorder".

what a load of horse malarkey!!!!!!

On 12/15/2019 at 2:09 PM, Berta said:

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 .

[blahsaysme2u]

UPDATE:

Claim was submitted January 16th with DX/IMO from audiologist along with all of the VA websites citing JP8 and Blast injuries for CAPD. 

also, update from the VA side of things. they gave me hearing aids because "even though we cant diagnose you with CAPD, we know with your TBI injury and hearing complaints we can treat you". sooooo- they are great. night and day. if you have these symptoms i highly recommend getting them. they filter out background noise and contrast speach for clearer processing. its incredible!

[blahsaysme2u]

JUST HEARD FROM VSO THAT MY CLAIM WAS DENIED  BECAUSE THEY ARE SAYING THAT I NEED TO FILE A NEW CLAIM SINCE CAPD IS NOT WHAT I ORIGINALLY FILED MY CLAIM FOR. I CANT APPEAL THE DENIAL WITH A DIFFERENT DIAGNOSIS!!!!

So all this hard work to get my back pay for nothing it looks like. they dont care that i have had the same symptoms since 2008 and i filed the claim for the wrong disorder. i dont think i am going to win this one. also, my vso looked over my previous denied claims and couldnt even find where i filed for hearing loss in the past or have a denial, even though on ebennies it shows hearing loss not service connected and i know i filed this claim! i am at a loss for words on what to do!. he suggests just filing the CAPD claim as a new claim and we will work on the back dating after i get service connection. it just seems like a HUGE step back when i have filed so many appeals for this already.