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

[Berta]

Can you scan and attach the denial and the Evidence list here?

Cover the C file # ,name, address prior to scanning it.

They might have overlooked Clemons:

"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) "

However I hope this is nothe basis for your CUE:

"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."

A perceived violation of DTA is not a basis for a CUE.

I think we pointed that out to you in this thread.

 

 

Edited April 17, 2020 by Berta

[blahsaysme2u]

3 hours ago, Berta said:

Can you scan and attach the denial and the Evidence list here?

Cover the C file # ,name, address prior to scanning it.

They might have overlooked Clemons:

"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) "

However I hope this is nothe basis for your CUE:

"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."

A perceived violation of DTA is not a basis for a CUE.

I think we pointed that out to you in this thread.

 

 

i was so hoping you would respond  we ended up not doing a CUE this time on the CAPD. your advice previously helped me to just file a supplemental claim with Clemons. i did this. and submitted  it as evidence. i haven't gotten the denial letter yet. it's been almost 3 weeks now. i guess things are slowed way down by the "virus". 

i did this on my own without my VSO and i think he is a lil butt hurt about it. he was like "i never even heard of this. they were right, your hearing is fine blah blah blah" so i spent about 30 min just trying to explain to him what exactly CAPD is. then i tried to explain Clemons to him and he was like i don't think you need to push this. just file a new claim for CAPD bc i cant find anywhere in your record where you filed for hearing loss in the past. 
OK DUDE- LOOK! if i had never filed for hearing loss how have i appealed it last year? how did i refile again in January for it? i wish i had a copy of my C-FIle but again i have been waiting on this for months now! i requested it in NOVEMBER!?!?!?!?! VSO says "you are too worried about back pay. get service connected first then we will work on back pay"

maybe i should file an appeal on my own again? CUE this time? HLR? i don't know. wait for my post with the denial letter and let me know your thoughts. and please if anyone else has input i am open to all suggestions!

thanks so much guys and gals! this team is the best and has helped me so much! i wouldn't be where i am now if it wasnt for you ALL!

[Berta]

Buck made an excellent point in this thread- were you involved in a "blast", inervice?

There is definitely a potential link between TBI and CAPD-I read a lot on this condition and it is technically not a hearing problem, as you said, ... it is a neurological problem.

I thought you had an IMO/IME but cant find that post.

The IMO/IME doctor would have to associate the CAPD to an inservice event accident, "blast" etc, and would  have to refer directly to entries in your SMRs and 201 Military Personnel file,and bolster his/her opinion with some of the internet links, or abstracts on the net hat show the association.

If you did have a TBI, and never claimed it, maybe the time is to claim it NOW with a secondary claim for the CAPD.

If you have not gotten an IMO/IME yet, it is the time to consider one.

[blahsaysme2u]

10 minutes ago, Berta said:

Buck made an excellent point in this thread- were you involved in a "blast", inervice?

There is definitely a potential link between TBI and CAPD-I read a lot on this condition and it is technically not a hearing problem, as you said, ... it is a neurological problem.

I thought you had an IMO/IME but cant find that post.

The IMO/IME doctor would have to associate the CAPD to an inservice event accident, "blast" etc, and would  have to refer directly to entries in your SMRs and 201 Military Personnel file,and bolster his/her opinion with some of the internet links, or abstracts on the net hat show the association.

If you did have a TBI, and never claimed it, maybe the time is to claim it NOW with a secondary claim for the CAPD.

If you have not gotten an IMO/IME yet, it is the time to consider one.

yes i had IME and have DX with wording "most likely caused by TBI from blast injury and even more so with soldiers exposure to Jp8." also i have 50% tbi/ptsd rating. 

[Berta]

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" "

I re-read the whole thread many times, and I agree with the VSO-file a new claim-

As I posted yesterday:

 

"The IMO/IME doctor would have to associate the CAPD to an inservice event accident, "blast" etc, and would  have to refer directly to entries in your SMRs and 201 Military Personnel file,and bolster his/her opinion with some of the internet links, or abstracts on the net hat show the association."

If you did have a TBI, and never claimed it, maybe the time is to claim it NOW with a secondary claim for the CAPD."

As I understand this- you get SC for PTSD ,that included a TBI."also i have 50% tbi/ptsd rating. "

Does the VA have a copy of the IMO yet?

The TBI event is stronger than a JP8 claim. Jet  fuel claims have to specifically identify the  exact type of fuel exposure  and they need Very strong  IMOs.The  conceeded TBI is a better nexus.

What type of doctor did the IMO?

Did they have a copy of your SMRs? 

With evidence the IMO DR had of the TBI conceded by VA as SC, maybe the VA will accept the opinion ,even if the Dr did not have the SMRs.

Did the doctor refer directly to any good abstracts, etc, on how a TBI can cause this disorder?

Can you scan that decision and how they rated the PTSD/TBI?

The VSO said"just file a new claim for CAPD bc i cant find anywhere in your record where you filed for hearing loss in the past. "

Did he say to file it as secondary to the established  PTSC/TBI award?

Refer to and add the IMO to this claim .

Appeal any denials on the other claim, but once they grant ( and hopefully they will) then the other claim might have a way to obtain a better EED- because it seems obvious that VA did not understand what CAPD is..it is a neurological disorder.

Was the IMO dr a neurologist? 

 

 

 

 

 

 

I am trying to point out the "landmines"-

 

 

 

 

[blahsaysme2u]

so i got my letter. its not a denial. its a letter saying that i need to file my claim on VA form 21-526ez. i submitted VBA-20-0995 and below is a screenshot of what i wrote on the claim form.