JKWilliamsSr

I have sleep apnea myself and I know exactly what you mean. I am not service connected yet....taking a step by step approach on that. I have to link it to other disabilities and that is a process for me. 1. I am rated for Bronchitis but now have Asthma - will request an increase on that 2. Also have weight issues which is directly related to my knee, ankle, feet issues which prevent me from working out. Currently on working on getting the feet service connected and once that is done I can tie in the weight issue as well. I did not develop sleep apnea until after I was diagnosed with Asthma and gained the weight.

This is a clear violation of the VA's required duty to assist. Case Law: Once the veteran’s initial burden of submitting a facially valid claim is met, the VA is obligated to assist claimant in developing facts pertinent to claim and when all the evidence is assembled, the VA is then responsible for determining whether evidence supports the claim or is in relative equipoise with the veteran prevailing in either event or whether fair preponderance of evidence is against the claim in which case a claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

If you have a diagnosis of Sleep Apnea in your Service Military Records you do not need to have a DBQ filled out. It should automatically be service connected. Do you require the use of a CPAP machine?

What Dr is this? Is it a VA doctor or a civilian doctor from your own insurance? Unless I am mistaken a DBQ is not required. I have not seen anything that states that your doctor has to fill one out and I am pretty sure it can't be forced.......But.....you will need something to show service connection and if the doctor will not fill out a DBQ will they write a letter? Maybe have them put a note in your records that your sleep apnea is more than likely caused by X disability and submit the records?

Based on what you have said the effective date should be the date you filed the original claim because you are reopening a claim based on new and material evidence. The key statement in the regulation is this. "An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. " Now they denied the claim because of lack of evidence. They did not have your records and could not determine service connection. Eventually they would get the records so it does not matter if they get the records 1 day or 100 years after you file the claim the original date should go back to when the claim was decided. By reopening the claim the are pretty much acknowledging that the evidence now is new and material. BUT......whoever is rating your claim probably does not care or is ignoring this fact of law. Here is some case law on this particular issue: Although an effective date generally can be no earlier than the date a claim to reopen was submitted, there are exceptions. One such exception is when the claim is reopened based on previously missing service medical records, in which case the effective date can be as early as the date of receipt of claim on which a prior evaluation was made. 38 C.F.R. § 3.400(q)(2) (2007). Taylor v. Nicholson, 21 Vet.App. 126 (2007).

The issue here is determining service condition because there are no complaints in your service records for your wrist and hand injuries. Your best bet may be buddy letters from people that served with you and/or letters from your spouse if you are/were married at the time of service. If you can provide statements that will show symptomology. The key here are letters that state knowledge of symptoms and not a diagnosis. this is admissible and the VA is required to consider such evidence.

They key here is what the reason for the denial was. It should be spelled out in the statement of case. Your case is somewhat similar to mine with the exception that the VA did a review after they received your records. That did not happen for me. In my denial it was stated (I am paraphrasing) that my service medical records do not show my claimed disabilities. So......I finally get a copy of my service medical records and the disability I am claiming is not only in there but diagnosed by a specialist. Now I made the initial assumption that because the disabilities is in my medical records it is a CUE and theoretically it actually is BUT the easier path would be to have it reopened because I now have new and material evidence. Specifically in my case ( and more than likely yours) the regulation to cite is 38 CFR 3.156 (c) (1) (I) - The regulation states and I am going to paraphrase here - that service medical records received any time after the VA renders a decision is new and material evidence. It does not matter when the records were received by the VA. This will allow the claim to be reopened. Just as Broncovet stated it is best that you learn how to look things up and familiarize yourself with the regulations. I have learned to never.....ever..... trust what a VSO tells me without verification. I am not saying that VSO's are bad. That is not the case because some of them are very, very good BUT the claim is still your responsibility and you need to make sure you know what is happening every step of the way. I personally will not use a VSO. In my instance if I am denied I will go with an attorney to handle my appeal to the BVA.

If it is in your medical records you can request that it is reopened citing 38 CFR 3.156 . You do not have to file a CUE on this because of the fact that the records have reappeared. My suggestion is that you when you request the reopen you submit the pages from your medical records that support your claim for sleep apnea. The VA from my own personal experience will sometimes miss obvious information that are in your records.

That would have been my post. It is weird because if I check my post history I can find it and access it. However I don't see it anywhere else. Maybe because all my posts still require moderator review and it had a link to an external page on it?

I found this document while searching for other information and wanted to share it. I don't know if it was here already or not. I did a search but nothing came up. It is PDF document created but the Disabled American Veterans (DAV) with a list of precedent setting decisions on appeals. The last revision was January 2010 but there is a wealth of information in this document that I think could be of great use to everyone here. http://wicvso.org/mbr_resources/2014_conference_presentations/CAVC_Digest.pdf

Doc25 here is something that may help from an appeal standpoint. "In making findings of fact, the BVA is required to consider and discuss evidence on both sides of the issue and to reconcile any conflicts among such evidence or alternatively provide explanation of reasons for rejecting evidence favorable to the claimant or determining that such evidence is of little weight or probative value. Quiamco v. Brown, 6 Vet.App. 304 (1994). " Given the fact that you have Podiatrist diagnosis that is completely contradictory to that of your C&P the VA (or more accurately BVA) will have to address this.. I believe this is actual case law so they just can't say we take this diagnosis over that one without an explanation and in this case I can't see any argument where you would take the diagnosis of a Physician Assistant over that of a Podiatrist. Here is another: BVA cannot reject evidence favorable to the claimant without providing adequate reasons and bases for its decision. Patton v. West, 12 Vet.App. 272 (1999). Here is a law that covers the equipoise rule: A claimant seeking VA benefits enjoys the "benefit of the doubt rule," or alternatively an "equality of the evidence" standard, as opposed to the more common preponderance of the evidence standard applied in most civil contexts. This standard can be thought of as the burden of persuasion, in that evidence must rise to a state of equipoise for the claimant to win. 38 U.S.C. § 5107(b). Skoczen v. Shinseki, 564 F.3d 1319 (2009). 38 U.S.C. § 5107(b).

This appears to be very, very important info in my humbled opinion and I thank you for it. So far from what I have read RAMP appears to be avoided at all costs. It just does not appear to benefit the veteran IMO and is nothing more than a quick denial.

If I was to fathom a guess I would have to say that the examiner ignored the evidence before them. The reason for that would be unknown because the same thing happened to me also. They probably skimmed through the records without actually reading. The thing that stands out the most is that you have diagnosis from a podiatrist. That alone should have been enough for the rater. There is no way anyone can justify taking the diagnosis of Physician Assistant over that of an actual Podiatrist. You have one that is a fully qualified doctor that is a specialist in the field that you are filing your claim for and one that is not. You denial is based on the opinion of an unqualified examiner and is clearly a CUE imo. (already pointed bout by Berta....I am just piggy backing ) Even if you are successful in your claim this time I think you should still file an appeal for an effective date of your first claim based on a CUE. (that is if they don't automatically grant it) Having a diagnosis from a Podiatrist is the equivalence of striking gold IMO. When the evidence is properly weighed the law requires that if is in the favor of the veteran. That never seems to be the case at the local level though. They seem to follow their own rules and often ignore the requirements set forth before them. The key word here is "equipoise" which is simply described as if there are two pieces of evidence with differing opinions made by qualified individuals the decision must be made in favor of the veteran.

That is a clear error. I am going to assume they had all of this information before them when they made the denial. The key here imo is the diagnosis to state that your flat feet is congenital. In your denial did they state how they came up with that diagnosis? Did they do any X-Rays? Do you have a diagnosis from your own dr?

Doc25 have you ever filed a notice of disagreement or did you just accept the decision without an appeal? The reason I ask is because if you have an entrance physical that states your feet were normal the VA has to accept and conclude you were fit for duty upon entrance in the military. Was the person that made the so-called diagnosis that your flat feet was congenital a podiatrist? If you have an entrance physical that says normal feet I don't see how it is possible for anyone (even a podiatrist) to make the conclusion that your flat feet was congenital when you are an adult. I can't see how the denial would be able to stand on appeal.

Does knowing the M21 really carry any weight? The reason I ask this was back when I received my initial rating and was attempting to use Voc Rehab I often referenced the M28 when I attempted to show where the Voc Rehab counselor erred in their decision and I was told that the M28 was a guide and not law. It was a long drawn out battle that I just gave up on. Sadly, I have to admit that for lack of better word they broke me down until I no longer had any fight in me. There is so much information to shift through it can be overwhelming at times.

Another question. I think you touched on it Broncovet but I probably need a little clarification. Even though I am requesting the claim be reopened via 38 CFR 3.156 (a) and 38.CFR 3.156 (c) (1) is it still a good idea to list all of the symptoms I am experiencing?

Thanks Bronco that makes a lot of sense. So simple put.... All I need to do is request they reopen X disabilities. Cite the Regulations I am making my request from. Submit my evidence and move on?

I am in the process of reopening a claim that was filed in 2009 and had some questions about how the statement should be worded. I filed a claim for a bilateral foot disability and was denied because they stated my there was no mention of the claimed disability in my medical records. I now have definitive proof that they in my SMR's and am requesting a reopen citing 38 CRF 3.156 (c) (1) that one should be a no brainer but you never can tell with the VA. I also filed for my ankle issues and back issues as well. I requested a reopen for those as well. I feel the ankle issues should be secondary to my foot issues but since I did not make that it a secondary disability when I filed my claim I think they will deny that. The back issues are acknowledged in my records but the VA state that there was no chronic diagnosis. I figured I will give them a shot and if denied I will just file a new claim for them. I originally planned on filing a CUE but after some help from Berta and Bronco I think the best option would be a reopen request which is why I am not posting here. My question is how much detail should I put in the statement in support of reopening. I have used the search feature and found some good information but no examples of reopen statement letters. I have one created and would upload it here if I could. If someone could give me some insight on how I could upload a document I would appreciate it. Thanks in advance.

I am going to file it under 38.CFR 3.156 (c) Service Department Records. This is more than likely the best route to go because I cannot say with absolute certainty they had the records at the time of my claim. My personal feelings are that they did have them and just overlooked them but "he said, she said" is not the way to go here. I have a full copy of my SMR's that I received from the VA. Every page on this record has he statement "Copy made by the VARMC, St. Louis from a record in VA's possession. While that shows the record is in the VA's record it does not state when they received it though I suspect they had it all along. Citing 38.CFR 3.156 and 38 CFR 4.6 for lack of a better word forces the VA to acknowledge my claim. I think it is clear cut and should be reconsidered but then again I thought that way when I originally filed as well. There are no certainties when it comes to the VA In my humble opinion.

Berta if there is one thing I can confirm is the pain cause by flat feet. I have been told by a couple doctors over the years that the only thing that can be done is inserts. Well the truth is they really don’t help. The only thing they do is make it a little longer before the pain kicks in. It is so bad for me that I no longer walk on the insides of my feet. I put all my weight on the outside half of my foot (both sides). So I have been “self medicating” for years with OTC inserts. I buy the Dr. Scholls inserts and couple that with very good running shoes (I don’t run) that are very good support for my feet and gait. They don’t stop the pain just takes a little longer for it to begin So now I am experiencing serious issues all around. Foot pain (including heel), ankle pain, Knee Pain (I have 10% for each knee right now but just got diagnosed with osteoarthritis in each knee), Lower Back Pain and am now experiencing hip pain.

I truly understand the point about the ankle condition. I was claiming it as secondary to my foot conditions but since they denied the foot disability I had nothing to show as a nexus because I relied on that and I probably will not go for a CUE on that particular disability if denied and will just file a new claim as secondary to Bilateral Pes Planus and Plantar Fasciitis. Here is the problem I run (ran) into when filing for VA disability. I did not have a single clue as to what to even ask for. I did not use a VSO because the several I contacted had absolutely zero interest in helping me and it was obvious. I know there are many very good VSO's out there but there are also a lot of bad and I encountered a couple of them. So I made generalized claims based on my symptoms. My biggest issue and CUE complaint is the flat feet denial that they state was not in my SMR's. I am submitting evidence that they were and filing a reconsideration under 3.CFR 3.156. Here are the things that are clearly in SMR's and most of these notes were from the base podiatrist and sick call doctor. 1. Tender Plantar surface of heel (sick call doctor) 2. Flat Arches (sick call doctor) 3. Heel pain/tenderness on wt bearing (sick call doctor) 4. Rigid Flat Feet (podiatrist) - I believe the word deformed is written here as well but hard to make out the reason I say that is because I can easily make out the defor but the rest is scribbled. 5. Plantar Fasciitis (podiatrist) I also have an X-ray that confirms flat feet and my exit physical has moderate pes planus as I previously mentioned while my entrance physical has my feet as normal.

The entries that are in my medical records are related to the disability I am claiming. My claim was for flat feet. I was not certain of what is what but my records have notes of Plantar Fasciitis and Flat Feet. I have an x-ray report in my records confirming flat feet and I my exit physical shows my feet are abnormal with moderate pes planus (entrance physical has my feet as normal) It took me a while to get there but I see the logic on trying for the VA to reopen by citing 3.CFR 3.156 . I still think there was a clear CUE on the part of the VA by not allowing my claim but I need to first be able prove that and citing 3.CFR 3.156 gives me that opportunity. The VA was vague in the evidence they used. The listed they used my SMR’s and even put the date range of the records. The evidence I have which comes directly from VA copies shows they have those records. They just don’t show when they received them but I suspect they had them all along. By citing 3.CFR 3.156 they will either grant the request or deny it by stating the evidence is not new and material. If they do that then I have a clear CUE because that is an admission of having the records the entire. I am going to draft a new letter requesting reopen citing 3.CFR 3.156, I am going to hold off on my CUE until I hear back on my new request.

I have thought of using 38 CFR 3.156 but thought my situation did not apply because it has been almost 10 years since my claim and I am not submitting anything new only what was in the records that I believed was in the possession of the VA.

I am sure they had the records in their possession. When I filed my claim I did not send any additional documents. The reason I decided to file a cue is because I finally received a copy of my service medical records that were in the possession of the VA. The evidence I cited I would include came from those records and on the bottom each page this stamp is on it. " “Copy made by VARMC St. Louis from a record in VA’s Possession.” "