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]

5 hours ago, Berta said:

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.

when i submited this appeal, i submited the docotors IME/IMO. i understand what your saying about JP8. but i do have records showing my exposure to JP8 and i submitted the VA's own research papers on the matter with my claim.  but the doctors main focus was showing i had a DX of CAPD and that i have had inservice events connection events including the blast injury. she had all my service records and referred to them in the IMO.

she is an audiologist that actually speciliizes in CAPD. she has a list of creditionals that she listed on her IMO that show she knows this disorder very well. she also works with the local VA center trying to get CAPD testing to become a regular part of hearing testing bc so many vets probably have this and are denied hearing loss bc they dont understand the difference in ear damage and nerve/brain damage can do to hearing. 

below is my scanned TBI rating. its really frustrating bc i do have more issues that should have TBI rated higher but i need to appeal that as well. i have so many irons in the fire and just trying to make sure the ones that will progress are the ones i focus on. i have put most of my attention on this and my OSA claim instead of working on the TBI stuff for now. im running out of time to appeal or ask for increase though. and with the "Virus" running amock, its hard to work with my VSO.

 

[blahsaysme2u]

just a quick note after you read that. my wife and i both put in our statements for my TBI claim evidence that showed multiple examples stated under the 10% section. again its like the VA ignored that. my testing they gave me even showed issues in these areas. very frustrating. 

[blahsaysme2u]

just following up and see if anyone had a chance to look this over. any input would be helpful.

thanks guys

[Berta]

It is too bad that the claim was filed n the wrong form , however now is your chance to file it correctly.

I re read this thread ( I dont have time to find your other posts- in any event I suggest to file for a higher rating of the "0" SC for TBI, and file for the CAPD as secondary.

The IMO will help with the secondary but not with the TBI rating-as I believe you said the Imo  doctor is an audiologist.

I believe the VA will not even consider the IMO for the CAPD unless you can get a  higher TBI rating.

Don't forget -some years ago the VA was caught giving improper TBI C & P exams to veterans.

Perhaps they made a CUE in the TBI C &P exam. Personally I do not see how any vet can have a TBI, and get a "0" rating- it makes no sense at all.

" again its like the VA ignored that. my testing they gave me even showed issues in these areas. very frustrating. "

Make that point to them, under any Remarks area ,with your spouses statement.

There is more info here under a search as to the deficient C & P exams many got years ago.When did they do the TBI C & P exam?

 

 

[Berta]

This OIG report will give you more info-----

https://www.va.gov/oig/pubs/VAOIG-16-04558-249.pdf

In part it says:

"In 2008, VA revised the criteria used to evaluate TBI. However, VA failed to implement procedures then to ensure veterans received adequate initial TBI medical examinations. Subsequent VBA and Veterans Health Administration (VHA) policies regarding initial TBI medical examinations were not consistent, and VBA and VHA were independently responsible for administration of the policy. From September 2007 through July 2015, VBA updated its policy relating to TBI medical examinations five times while VHA changed its policies four times. The variance between VBA and VHA policies covered effective dates of policy changes and the qualifications of examiners who could conduct TBI medical examinations. This led to an inconsistent implementation of TBI medical examination policies and contract requirements."

The VA snafued and fubared many TBI exams.You could raise this argument in your new TBI claim, if any of this appies to you, as to when you got the C & P exam..

It would be dependent on the dates of the changes above  and also when the VA determined you did have a TBI but at '0' %.

This will help more,

https://www.disabledveterans.org/2014/05/16/va-screwing-tbi-vets-quick-facts-tbi-evaluation/

We have had discussions here as well and this is one more article:

https://hadit.com/us-department-of-veterans-affairs-tbi-exam-failure/

Edited April 22, 2020 by Berta
added more

[blahsaysme2u]

so i have finally had my C&P exams for this claim that i resubmitted as secondary to TBI. 

previously my PTSD and TBI was connected and SC at 50%...i guess bc of this claim for CAPD, the VA is trying to seperate out my PTSD and TBI now. i had a PTSD exam and a TBI exam where both doctors where very confused why i was there bc after looking at my records said they could clearly see i service connection and basically just did the exam again to "check the boxes" for the VA requested exam. my PTSD dr just printed out what looked like the new DBQ and just went down the list and asked me questions and i would try to elaborate and he was like "i really dont need you to elaborate bc i have seen all this in your records already....lets get you out of here bc i dont know why they made you come here today"....dont know if that was good thing or bad thing but i was happy to just answer yes and no to questions and leave.

My TBI exam didnt go as well. i was very elaborate on my symptoms and went into great detail on the issues i have with work and social handicaps bc of it. i asked my VSO if he could look over the notes after the exam and he let me know the doctor said "the examiner opined that you have some mild symptoms which DO NOT interfere with work or social activities.  So that is on the low end of rating schedule"....

i am so upset over that....if anything i feel like my TBI symptoms are worse than my PTSD symptoms and worry if they do seperate these out i may end up worse in my rating % than before(10% for each maybe?)....

to make matter worse, i had c&p exam for hearing! i didnt claim this as hearing loss this time. i claimed it as CAPD secondary to TBI. but the VA still sent me to have a puretone test done. i already have a DX for CAPD and have the IMO documentation and DX in my records! when i go to the audiologists office, i asked him what testing he would be doing and he explained the puretone etc. i asked him if he looked at my records for what my claim was for he said no. i said well my claim is not for hearing loss its for CAPD. and that obviously a puretone test is not going to be able to test for that and he agreed. i asked him well why are you doing this test. he said i dont know thats what the VA asked for so thats what im doing. im low man on totem and i do what im told. i said well if you didnt look at my medical records and you dont know why you are doing the test, how can you give your medical opinion. if you dont know what you are supposed to be looking for or testing for how can you test me for it? and even worse by using the wrong test? "look we just need to do this test bc thats what the VA asked for. you should ask them why they asked for this test".....

so now here i am with 3 basically horrible exams for a claim that should be cut and dry. i have nexus. i have IMO and DX and i have ongoing issues which the even VA acknowledged bc they RX me hearing aids for the condition. 

thoughts? i dont even know what to do now