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)

[John Royal]

16 minutes ago, broncovet said:

There are at least 2 possible reasons why you were denied due to "no diagnosed disability" (sleep apnea):

1.  The VA did not have some/all of your records.  (likely)

2.  The VA had the records, but did not read your evidence.  (also likely). 

 

You should resubmit your evidence and file a NOD.  Welcome to VA.  This is what they do, most of us have had something similar.  Its called "bogus denials".  

You need to order a copy of your cfile to see whether its number one, or number 2.  It sounds like you have your records, so that is in your favor.  

VA loves to shred favorable evidence, and sometimes puts it in another Vets file.  Anything to delay or deny.  Saves money as many Vets give up, and dont appeal. 

 

Thanks for the guidance @broncovet! Since the 1 year Appeal/NOD window ran out on 03/09/13, can I still do a NOD? @Gastone advised to submit my compelling new & material Medical Evidence that was or wasn't viewed by the prior Claims Raters on a NEW FDC and then hopefully get the SA SC, then wait until I get an Award/Denial Letter, then file an EED for Retro $$ if I do get an award. Does anyone know if I have to submit a FOIA Request in conjunction with the C-File Request?

 

JR

[broncovet]

No, a nod that isnt filed timely will be denied.  However, you can resumbit evidence under 38CFR 3.156, and there is no time limit on that.  

If your evidence is new SERVICE RECORDS, your effective date may go back to the date you first applied.  However, if the records you resubmit are not service records, just medical, then your effective date is likely to be the date you reopened.  

Its possible you can resubmit under BOTH 3.156 and 3.156C as the service records may well be pertinent or even critical.  Just submit new evidence, and you can sort out whether its 3.156 C or not later.  Or, just call it new "service records" and just move forward.  

 

Edited June 16, 2016 by broncovet

[John Royal]

32 minutes ago, broncovet said:

There are at least 2 possible reasons why you were denied due to "no diagnosed disability" (sleep apnea):

1.  The VA did not have some/all of your records.  (likely)

2.  The VA had the records, but did not read your evidence.  (also likely). 

 

You should resubmit your evidence and file a NOD.  Welcome to VA.  This is what they do, most of us have had something similar.  Its called "bogus denials".  

You need to order a copy of your cfile to see whether its number one, or number 2.  It sounds like you have your records, so that is in your favor.  

VA loves to shred favorable evidence, and sometimes puts it in another Vets file.  Anything to delay or deny.  Saves money as many Vets give up, and dont appeal. 

 

Thanks for the guidance @broncovet! Since the 1 year appeal/NOD window ran out on 03/09/13, can I still do a NOD? @Gastone advised to forget about the to submit my compelling new & material Medical Evidence that was or wasn't viewed by the prior Claims Raters to my NEW FDC and then hopefully get the SA SC, then wait until I get (hope) the Award/Denial Letter, then file an EED for Retro $$

 

3 minutes ago, broncovet said:

No, a nod that isnt filed timely will be denied.  However, you can resumbit evidence under 38CFR 3.156, and there is no time limit on that.  

If your evidence is new SERVICE RECORDS, your effective date may go back to the date you first applied.  However, if the records you resubmit are not service records, just medical, then your effective date is likely to be the date you reopened.  

Its possible you can resubmit under BOTH 3.156 and 3.156C as the service records may well be pertinent or even critical.  Just submit new evidence, and you can sort out whether its 3.156 C or not later.  Or, just call it new "service records" and just move forward.  

 

Thanks brother! I have a few other questions that I hope are not redundant and/or dumb questions. If I file the new FDC with the new/missing evidence, will I still have a new C&P exam?  If I don't need a new C&P exam and I am providing them with the evidence, should I wait for my C-File? If so, do you know if I have to submit a FOIA Request in conjunction with the C-File Request?

JR

[broncovet]

Go ahead and submit the new evidence.  Waiting will hurt your effective date, unless its 3.156 c (new service records).  

Its anybodys guess if Va will order a new C and P exam.  

Do ask for your c file.  

[John Royal]

2 minutes ago, broncovet said:

Go ahead and submit the new evidence.  Waiting will hurt your effective date, unless its 3.156 c (new service records).  

Its anybodys guess if Va will order a new C and P exam.  

Do ask for your c file.  

Thanks again! Do you know if a FOIA is required for my C-File?

[Buck52]

Try VA Form 21-3288  Request a Redacted copy of complete C-File Also known as Claims Folder.

 

...............Buck