Sleep Apnea - Appeal or New Claim

[John Royal]

Greetings everyone! 

Seeking advice on how best to proceed with my Sleep Apnea Claim. I retired in 2011 after 21 1/2 years of Naval service and I am currently SC at 40%. I need advice on whether to appeal my Sleep Apnea Denial (VA letter dated 3/9/12) or to file a new claim, since the 1 year to appeal has come and gone. In July of 2012, I received Progress Notes (VISTA Electronic Medical Documentation) that stated a diagnosis of Sleep Apnea diagnosed while on Active Duty with a plan for Sleep Services Consult. I assume the Progress Notes that I have came from my SMR, which I located where it said I had Mild Obstructive Sleep Apnea and it is confirmed from the Sleep Study performed (referred by VA to Civilian Provider) on 1/7/2011. I just had another Sleep Study (referred by VA to Civilian Provider) in April of 2016 and the results are that I have Moderate Obstructive Sleep Apnea and need a CPAP (which the VA will issue - soon I hope, as I have been dealing the effects of OSA for years now). I used eBenefits to get myself to the 40% level and wanted advice on whether I should submit an Appeal or New Claim using eBenefits or via a DAV/American Legion etc. 

 

Very Respectfully,

John Royal "JR" (USN Chief Petty Officer, Retired)

[Andyman73]

JR,

I believe you have to mail the request to the claims intake center, or if you are close to your VAMC, you can have them scan it into the system on the spot. Maybe others will chime in to say yay or nay about the ebennies option for the C-file request. But it will show up as a claim, once it's in.

That is how I requested mine, while at the VAMC for other reasons, just stopped in a the benefits counselor's office, filled out the form.  He date/time stamped it, scanned and uploaded it, and made a copy to mail off as well.  Then he gave me back the stamped original.

Hmmm, if the SMR entry shows a DX, then it's there.  Sounds like they didn't want to even give you a 0% rating, since they knew it would leave the door wide open for increase in the future.

Andy

Semper Fi

[Gastone]

Are you saying, that as of today 06/02/2016, you have not Filed a New Claim for SA based on the recent 04/16 Sleep Study?  The reason would be?

It appears that you missed the NOD Train on your previous Denials, or am I wrong? Did you ever file a NOD on anything?

Forget about the Retro for right now, if you think you have compelling New & Material Medical Evidence that was or wasn't viewed by the prior Claims Raters, attach it all to your NEW FDC. Get the SA SC, just because you think or wish your SA will be SC'd, doesn't mean anything till you get the Award/Denial Letter.

If you get the SA SC, then start researching for an EED Claim for the Large Retro $$.

Semper Fi

[John Royal]

Gastone,

As of today, I have not filed a claim, as I am still waiting for additional visit to Civilian Provider to wrap up the Sleep Study. I assume it will take the Prosthetics Department at the VA some time to issue me the CPAP machine. I am very diligent and communicate regularly with my PCM through My HealtheVet and hope that will help speed the process along in getting one issued. I missed the NOD, like a dummy, as I was busy with my new career and other things. I have the VA Form 3288 filed out and based from posts that I read on here, I phrased the request for my C-FIle as follows:

INFORMATION REQUESTED BLOCK: I am requesting a complete unredacted copy of all of my claim files: papers, digital media, and all artifacts which are now contained in my Compensation and Pension claim folder.

PURPOSE FOR WHICH INFORMATION IS TO BE USED BLOCK: I need to review my entire claim file.

JR

Edited June 2, 2016 by John Royal

[broncovet]

If they denied you because of no evidence, and they did not get your SMR's (for whatever reason), then you can/should reopen due to N and M evidence, 39CFR 3.156 C.  C is the Service records which should get you your effective date back to when you first applied.  

[Gastone]

John, very few Vets, yours truly included, don't have our fingerprints all over our Claims Denials. We either relied foolishly on a VSO-Rep  to be as concerned, as we eventually became, or just plane old ignorance of VA Claims and a good dose of procrastination. All 3 are a recipe for a Denial.

You mention your waiting, I trust you have at least started your SA FDC on your E-Ben site, to establish the New Claim File Date, right.

Refresh my memory, are you filing for SA as a Direct SC or a Secondary? What is your Medical Nexus Evidence? Posting redacted copies would be helpful.

Semper Fi

[Andyman73]

JR,

Gastone hit the nail on the head in a big way, many of us here missed NOD dates either through sheer ignorance, that is, not even knowing what we didn't know. Or procrastination.  This whole claims process is probably more mentally draining than anything else you ever experience. 

Those of us in the green service branches, where the mentality is significantly more "no pain, no gain", and "I don't mind, so you(your pain)don't matter..aka mind over matter" have such a harder task, because this goes against the grain of our basic service branch mentality.

But there is hope, Gastone, and numerous others will give you sound advice, that will help you and guide you. 

Semper Fi