Jump to content

Ads

  • Search



  • 0
Darc_wolf

Help with reopening claim or CUE?

Question

Hello,

I am seeking help on reopening or CUE-ing  a denied claim from 2015. I gave up fighting for a while and just recently had a claimed competed. I am seeking one of the toughest claims to get connected for (sleep apnea) and just wanted to see what you all thought of the denial reasoning and DBQ? I had a chance to look at some of my STR's and they stated a few times untreated hypertension which I wasn't aware at the time was resulting from OSA which I was diagnosed with four years after leaving the military. I am still waiting on a c-file that I put in for as of June. I have also gotten together two buddy letters and was wondering if you all think I should go ahead and spend the money for an IMO. I am currently using a CPAP after being diagnosed on 2005. Please forgive me if I am all over the place this is my first post though I've been lurking for a while. :)

 

Share this post


Link to post
Share on other sites

Recommended Posts

  • 0

As always, stick to the basics.  Reading your records will provide you with clues of what to do next.    You need the Caluza triangle for service connection, and you should check your records (read them) and see, before spening money on an IMO/IME.

1.  Current diagnosis

2.  In service event or aggravation

3.  Nexus, or doctors opinion which links 1 and 2. 

      An IMO/IME will "not" fix a lack of in service event or aggravation.  It WILL fix a lack of nexus or maybe provide a diagnosis.  Dont spend money on an IMO to try to get an in service event.  

      Since you have been using a cpap since 2005, I can presume you did not borrow your neighbors cpap and use it without any diagnosis of sleep apnea on your part.  

      You may need to look at the "in service event".  What "event" are you alleging caused sleep apnea?  Were you punched in the face and it broke your nose?  I think it will be difficult, but not impossible, to use JUST "buddy letters that you snored" as an "in service event".  I think you may need something more, especially since VA is cutting back on sc for sleep apnea.  

When you get an IMO/IME which "links" sleep apnea to an "in service event", you may need to show HOW that means your sleep apnea was caused by service.  In other words, ok, so you snored in service, and snoring is even a symptom of sleep apnea..but the snoring didnt CAUSE your sleep apnea, and you are trying to identify a "causitive" event.  

      Assuming your sleep apnea is OBSTRUCTIVE, rather than CENTRAL, sleep apnea is often related to excess weitht    Did you gain weight in service?  

     Getting SC for sleep apnea is not childs play.  

     I applied for and was denied SC for OSA.  

     You may look into secondary causes of OSA, if you have other SC conditions such as depression ptsd or anything related to a face or neck injury.  

     Attorney Chris Attig has a download for connecting sleep apnea.  And I dont think its free, but its probably worth it.  It wasnt worth it for me, as Im already 100 percent.  However, Im reconsidering downloading Chris Attigs book on sleep apnea, because a SC for sleep apnea definately means I would get statuatory SMC S.  However, Im rather overwhelmed right now on lots of other stuff, so Im going to wait until the smoke clears before I go back into the ring again with VA on sleep apnea.    Fighting VA is, well, exhausting.  I have fought them for 15 years now, and I probably have at least 5 more years.  After denials, the VA's "favorite thing" is making you wait 20 years for benefits.  

Share this post


Link to post
Share on other sites

Ad


  • 0

Right now, I dont think you are "ripe" for filing a Cue, and it would be premature.  You shouldnt even think of filing a CUE until you have NOT ONLY all your service records and cfile, but you can "name" the regulation VA violated in the CUE.  

However, after you read your cfile and can point to something and say, "There is the CUE", then you can/should consider the CUE.  It helps to remember CUE as a "standard of review" not an error, because most errors are insufficient to be cue.  For one thing, the error has to be "outcome determinative".  If they forgot to dot an I or provide the duty to assist, that isnt CUE.  

In addition, Cue has to be "undebatable", AND based on the laws at the time.  

Often, reopening due to 38 cfr 3.156 is more effective than cue and produces a similar result.  You see, if the VA "didnt have that information" in your file, then its not cue for them to base your decision on what they DID have.  So, the procedure is to submit the new information and ask VA to reopen it and make a new decision based on the new evidence.  

Share this post


Link to post
Share on other sites
  • 0

I had a chance to look at some of my STR's and they stated a few times untreated hypertension which I wasn't aware at the time was resulting from OSA which I was diagnosed with four years after leaving the military."

Has any doctor stated ( and documented in your records )that the untreated HBP resulted from the OSA?

Can you scan and attach here the denial letter as to their reasons and basis?(Cover C file #, name, etc prior to scanning it)

Could the OSA be in any possible way related to the 60% you get now?

You will need new and material evidence to re open this claim. The buddy statements will help if they were in your same unit, same time/ place, but they sure might not be enough.How soon after discharge did the HBP get treated properly?

Share this post


Link to post
Share on other sites
  • 0

Thanks for the reply broncovet, I was prescribed the CPAP in 2005 after an in home sleep study. I have been service connected for asthma @ 30%  since April 2000, I was diagnosed early in my STRs. I was going to use as part of my claim the fact the asthma prevented me from maintaining physical readiness as my military records showed failed PRT's when I left the ship and rapid weight gain from 1997 to 2000. I figured since the VBA examiners consistently deny OSA on the basis of obesity I would use this little gem in my claim as well. ( The Board notes that the VA Office of General Counsel released an opinion in January 2017.  This opinion, VAOGAPGCPREC 1-2017, holds that obesity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a).) 

I figure that and the buddy statement would show etiology of a disease that takes time to manifest. I have provided a link below so that anyone can review my redacted denial letter and the lam DBQ it was based on.

 

Redacted Info

Share this post


Link to post
Share on other sites
  • 0

Hello Berta I am honored to have both you and bronco reply.

No doctor has linked the HYT, I just assumed it as I didn't have HBP before service, but it started showing in service. I believe the asthma which affected my ability to exercise led to weight gain which is over 70% of the reasoning examiners use to deny OSA in the BVA cases I have reviewed.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now


  • Advertisemnt


  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Latest News
  • Our picks

    • If you are a Veteran, represented by MOPH, you need to know that MOPH is closing down its offices.  This can have a drastic effect on your claim, and it wont be good for you.  You likely need to get a new representative.  

      This station confirms MOPH is closing its doors:

      http://www.kwtx.com/content/news/Waco--Purple-Heart-veterans-service-center-to-close-its-doors-480422933.html

       
      • 0 replies
    • Retroactive Back Pay.
      Retroactive Back Pay - #1Viewed Post Week of March 19. 2018

      My claim is scheduled to close tomorrow for my backpay.
      Does anyone know if it does close how long till the backpay hits the bank?
      Also does information only get updated on our claims whenever the site is down?
      • 44 replies
    • Examining your service medical records...
      * First thing I do after receiving a service medical record is number each page when I get to the end I go back and add 1 of 100 and so on.

      * Second I then make a copy of my service medical records on a different color paper, yellow or buff something easy to read, but it will distinguish it from the original.

      * I then put my original away and work off the copy.

      * Now if you know the specific date it's fairly easy to find. 

      * If on the other hand you don't know specifically or you had symptoms leading up to it. Well this may take some detective work and so Watson the game is afoot.

      * Let's say it's Irritable Syndrome 

      * I would start page by page from page 1, if the first thing I run across an entry that supports my claim for IBS, I number it #1, I Bracket it in Red, and then on a separate piece of paper I start to compile my medical evidence log. So I would write Page 10 #1 and a brief summary of the evidence, do this has you go through all the your medical records and when you are finished you will have an index and easy way to find your evidence. 

      Study your diagnosis symptoms look them up. Check common medications for your IBS and look for the symptoms noted in your evidence that seem to point to IBS, if your doctor prescribes meds for IBS, but doesn't call it that make those a reference also.
      • 9 replies
    • How to get your questions answered on the forum
      Do not post your question in someone else's thread. If you are reading a topic that sounds similar to your question, start a new topic and post your question. When you add your question to a topic someone else started both your questions get lost in the thread. So best to start your own thread so you can follow your question and the other member can follow theirs.

      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.



      Leading to:

      Post clear questions and then give background info on them.



      Examples:

      A. I was previously denied for apnea – Should I refile a claim?



      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?




      B. I may have PTSD- how can I be sure?


      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?





      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
      • 2 replies
    • I have a 30% hearing loss and 10% Tinnitus rating since 5/17.  I have Meniere's Syndrome which was diagnosed by a VA facility in 2010 yet I never thought to include this in my quest for a rating.  Meniere's is very debilitating for me, but I have not made any noise about it because I could lose my license to drive.  I am thinking of applying for additional compensation as I am unable to work at any meaningful employment as I cannot communicate effectively because of my hearing and comprehension difficulties.  I don't know whether to file for a TDUI, or just ask for additional compensation.  My county Veterans service contact who helped me get my current rating has been totally useless on this when I asked her for help.  Does anyone know which forms I should use?  There are so many different directions to proceed on this that I am confused.  Any help would be appreciated.  Vietnam Vet 64-67. 

Ads



How to get your questions answered.

All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

Tips on posting on the forums.

  1. Post a clear title like ‘Need help preparing PTSD claim’ ...
  2. Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title ... 
  3. Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help ...
Continue Reading


  • Advertisemnt

  • Advertisemnt

  • Ads

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×

Important Information

{terms] and Guidelines