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Filing a CUE based on denying lay evidence

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Bunny448

Question

Good day,

I am building a case to file for Menieres Disease and I need a vertigo claim approved.

In 2006 I filed for vertigo that began in non combat at Fort Leonard Wood in 2002, I have many documents stating the diagnosis was vertigo.

It got worse in 2003 after two TBI events in Iraq.  After Iraq I sought treatment and was diagnosed with PTSD with panic attacks.

During the 2006 C&P the doctor claims I stated that it feels like the vertigo attacks come while I'm having a panic attack.  I doubt I said this, but whatever.  Also the vertigo started a year before I went to Iraq, so they should not be conflated.

So the VA denied my claim for vertigo saying I stated the vertigo attacks come with the panic attacks, and so should be considered under the mental health rating for PTSD.

I'd like to file a CUE, that the VA took a lay diagnosis (mine, that they were panic attacks) over multiple doctor diagnoses of vertigo.   Can I file a CUE for this?

I'll also stress in my planned  CUE filing that the vertigo began (and was diagnosed by mail doctors) a year before any combat.

Thank you for any input!

 

 

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7 minutes ago, Dustoff 11 said:

Your Key word is "pending"  and I have been referring to closed out claims (no longer pending)  whose time line for appealing the decision has expired in reference to my discussion on CUE error claims and not pending or EED effective date claims.  You are mixing apples to oranges here but that is okay with me.   

New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence.

A finally adjudicated claim is defined in 38 CFR 3.160(d). It refers to the status of an award or denial of benefits when either the appeal period has expired without an appeal being initiated, or

New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration all of the evidence of record.

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