Questions....and Maybe A Little Venting...

[joeyjoeyb]

I will probably get beat up on this, but am just not sure what to think these days. I will not go into great detail, but here is some back ground. I was diagnosed with sleep apnea 89 days after I retired from active duty. I waited to get a sleep study done for a few reasons, but the main one being this. I was told in my transition assistance class about 6 months before I retired (from a VA rep), that I had a year after I retired to get something service connected that is not in my service medical records. So I knew I had plenty of time to get the sleep study done after I retired. So a few weeks after I retired, I went to my PCM and requested a sleep study and was diagnosed with OSA and got a CPAP machine issued to me. (I had to pay about $300 out of pocket, as tricare paided 80%) My C&P exams were in April of 07 and gave the NP my sleep study and thought all was good. Denied because nothing in my SMR. So I got a VSO to help me. He told me flat out that VA will stick the "law" and not grant me service connection for something that is not in my service medical records. So I got buddy statements, a statement from me, my wife, a letter from my primary care manager and was denied again. This time they said that lay statements will not satisfy the burden of proof. So I filled a NOD De Novo review in Feb of this year. I got a letter from my sleep doc and submitted that as new evidence. So now I am in wait mode again.

So my questions are this. If lay statements to do work, how come when you search the BVA cases like this one....http://www4.va.gov/vetapp09/files1/0903559.txt

And the person won with ONLY a statement from his wife. Come on VA!!! I see people that have gotten SC with much less than I have at other RO's. (Mine is Atlanta) Alot of people have told me, including people from this board, that I will win "eventually". But why go through all this? I would be just fine with the decision if there was not so much subjectivity on everything. If the there were just rules that said "if you do not have anything in your SMR, you will not be granted SC", I would be ok with that. But do not get my hopes up and make me try to establish the burden of proof, when that does not work either. So when I see a case like the link above, what I am supposed to think. "Cool after 6-8 years, I will get it, when I should have gotten it to begin with". I mean, is this just a classic case of job security at the RO level? They deny, so the supervisors have a job...in turn they deny so the BVA has a job? Just does not make any sense. Like I said, if there were just rules out there that were set in stone, I would be all good. But I will have to just wait in line to eventually get something I should be service connected for years down the line.

There are alot of people out there that should get service connected for things alot worse than OSA, I know that. I am just trying to go by the "rules" and am just not sure what the "rules" are.

[pacmanx1]

Joey, I think you missed the point. This veteran like you was denied his claim for sleep apnea and he filed a NOD an appeal like you and won his claim for sleep apnea. Your claim has not been to the BVA yet so give it a little time. It may be awarded by the DRO or it may have to go to the BVA but try not to compare your situation to someone else because his claim went to the BVA and your has not.

[carlie]

joey,

The VSO you spoke with was probably referring to the information below.

http://ecfr.gpoaccess.gov/cgi/t/text/text-...111&idno=38

§ 3.303 Principles relating to service connection.

d) Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.

http://ecfr.gpoaccess.gov/cgi/t/text/text-...173&idno=38

§ 3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.

(2) Disability compensation —(i) Direct service connection (§ 3.4 ( b )). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.

[joeyjoeyb]

Pete,

I do not think I am missing any point. My point is...that if I am "eventually" going to get it service connected, why cannot it just happen at the lowest level. Why waste my time going through all these hoops to get something service connected. I believe I have to compare my situation to the link I provided because that is all I can compare it to. A person gets service connected by the BVA with ONLY a statement from his wife? I have done way more than that, so it would seem to me that I have established the proof the VA needs to service connect this. I do not want it to go to the highest level if it does not need to. I just wish they would just have rules in place to say "no service connection for you" for this reason and be done with it. But do not give me false hope!!

Joey, I think you missed the point. This veteran like you was denied his claim for sleep apnea and he filed a NOD an appeal like you and won his claim for sleep apnea. Your claim has not been to the BVA yet so give it a little time. It may be awarded by the DRO or it may have to go to the BVA but try not to compare your situation to someone else because his claim went to the BVA and your has not.

[Berta]

Joey-joey

If you could give them the exact evidence they asked for in the VCAA letter they received-you should just wait for the RO decision and see what is next.

My claim took 6 years but my neighbors-same VARO-took 8 months-

Like the BVA vet you posted he too was a 20 year retiree.

I think some of these retiree claims get awarded because much of the time the award doesn't not involve any more money for the veteran.just my opinion.My neighbor gets his Mil check less 10% and then gets 10% from the VA.

The BVA did refer to this vet's extensive service period.

One other thing- I wonder if the BVA mentioned all the evidence they could havce had in addition to the wife's statement.

Reason I say that-I provided extensive lay medical evidence for my claim and used this evidence to obtain 3 supporting IM0s as well.

The BVA only mentioned the IMOs in the award.It was disappointing to me as I felt the evidence I had obtained myself could have helped someone else if it was made public knowledge at the BVA.

Many of the BVA cases we read have more to them than meets the eye.Once the BVA feels they have enough to award-they look no further as this would be cummulative and time consuming.

I think some SC awards are incorrect-

so does VA as they have cued themselves from time to time on standing awards they have made.

I was sent copy of an AMC AO award letter last year that is so bizarre I think it could kick the vet in the rear one of these days.

Then again I only read what evidence the VA chose to list-and there had to be more to it then the bizarre award letter I read.

You need to wait for what the VA does next with your claim and make sure they fully consider all of your evidence.

[joeyjoeyb]

Thanks Berta,

Here is the denial I got when I submitted the statements from my wife, friend and myself along with the statement from my PCM:

The claim for service connection for obstructive sleep apnea is considered reopened.

However, the evidence continues to show this condition was not incurred in or

aggravated by military service.

You were previously denied service connection for obstructive sleep apnea and were

notified of the decision on August 10, 2007.

As you have submitted new evidence in connection with the previously denied claim

within one year of the notification of the denial, the claim will be readjudicated.

Review of the service medical records does not show evidence of any diagnosis of

obstructive sleep apnea (OSA) or any complaints of excessive daytime drowsiness. We

reviewed the additional evidence submitted, including the lay statements from (My wife and a friend), evidence showing sinus bradycardia and the sleep study December

13 , 2006 by Dr. XXXXX, and the statements from (My primary care manager)

Although (primary care manager) indicates in the statement you submitted that based on your history this condition began while you were in military service, as there are no findings in the

service medical records to support this stated history, we must continue the denial of this

claim.

In Black v. Brown, 5 Vet. APP. 177 (1993), the Court determined that medical evidence

was inadequate where medical opinions were general conclusions based on history

furnished by the appellant and on unsupported clinical evidence.

The United States Court of Appeals for Veterans Appeals stated in Espiritu v. Derwinski,

2 Vet. App. (1992) that hearsay medical evidence, transmitted by a layperson, cannot be

sufficient weighted evidence. Where the determinative issue involves either medical

causation or medical diagnosis, competent medical evidence is required to establish a

reasonable possibility of service connection. Although the statements you have submitted

were reviewed and considered, lay testimony, itself, will not satisfy that burden.

So if I cannot use lay statements, how come the person in the link I provided, got service connected with only a letter from his wife. I would think that is a lay statement as well.

[carlie]

Pete,

I do not think I am missing any point. My point is...that if I am "eventually" going to get it service connected, why cannot it just happen at the lowest level. Why waste my time going through all these hoops to get something service connected. I believe I have to compare my situation to the link I provided because that is all I can compare it to. A person gets service connected by the BVA with ONLY a statement from his wife? I have done way more than that, so it would seem to me that I have established the proof the VA needs to service connect this. I do not want it to go to the highest level if it does not need to. I just wish they would just have rules in place to say "no service connection for you" for this reason and be done with it. But do not give me false hope!!

joey,

The veteran in your BVA link DID NOT get granted SC for OSA with ONLY

a statement from his wife.

"A person gets service connected by the BVA with ONLY a statement from his wife?"

BVA had some medical evidence of his OSA having a Nexus to active duty

and some evidence showing no service connection.

This puts the evidence into relative equipoise, some evidence to grant

the claim and about an equal amount to deny the claim.

Apparently his wife's statement was enough to apply the reg for

Benefit of the Doubt and sway the weight of the total evidence,

to this veterans favor.

Remember that BVA decisions do not set precedent and as Pete992 posted

this vet had to take it all the way to BVA.

You posted,

"My point is...that if I am "eventually" going to get it service connected, why cannot it just happen at the lowest level. Why waste my time going through all these hoops to get something service connected."

Well VA gets to keep the cash longer without having to pay you any interest on it.

You might just get the denial,tuck your tail between your legs, give up, go away or perhaps even die off.

NOD's and appeals, in my opinion is the true reason for the tremendous backlog of

claims that veterans and the VA are dealing with.

Problem is the VA will still be here next year and we may not.

It's much easier for an agency to wait something out than it is

for an individual to wait it out.

At this point there is no way to know if you are going to

"eventually" get it service connected.

To the VA, we are only veterans, compensation seeking veterans,

a liability and not much more.

Good luck and hang in there.

Never give up !

carlie