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.

[Vync]

Joey,

The Veteran got out in 2006. In 2007, the VA did a sleep study which showed obstructive sleep apnea. According to the appeal, it happened eight months after he got out, which is within the one year 'presumptive SC' window. That means that if there is absolutely no medical evidence of something during service, because the Veteran filed a claim within a year of getting out, and the medical (and lay) evidence shows it meets requirements for SC, then it is considered to be presumptive SC. They assume it manifested itself during service because it met this criteria.

[carlie]

Joey,

The Veteran got out in 2006. In 2007, the VA did a sleep study which showed obstructive sleep apnea. According to the appeal, it happened eight months after he got out, which is within the one year 'presumptive SC' window. That means that if there is absolutely no medical evidence of something during service, because the Veteran filed a claim within a year of getting out, and the medical (and lay) evidence shows it meets requirements for SC, then it is considered to be presumptive SC. They assume it manifested itself during service because it met this criteria.

Vync,

joey posted he had a OSA diagnosis just 89 days after separation.

carlie

[joeyjoeyb]

Carlie,

I am sorry if I seem a little mad, but I guess I am just tired of all the stuff you have to do to prove something that seems pretty obvious. I am not saying that I will eventually get approved, but when I see that case with the BVA, what am supposed to think? I have way more evidence and mine was only 89 days after I retired. So I have to think that I would get approved if that person did. Like I said before, I just wish there was rules out there that were set in stone. Not so much subjectivity and stuff. If you approve one with that type of evidence, then you should approve all.

[joeyjoeyb]

That is what I was thinking too VYNC, but everyone is telling me that sleep apnea is not on the presumptive list. I wish that was the case, but why does it have to all the way to the BVA if that is true about the year thing? Like I said, it seems the rules change as the claim goes up the ladder.

Joey,

The Veteran got out in 2006. In 2007, the VA did a sleep study which showed obstructive sleep apnea. According to the appeal, it happened eight months after he got out, which is within the one year 'presumptive SC' window. That means that if there is absolutely no medical evidence of something during service, because the Veteran filed a claim within a year of getting out, and the medical (and lay) evidence shows it meets requirements for SC, then it is considered to be presumptive SC. They assume it manifested itself during service because it met this criteria.

[carlie]

joey,

The rules rarely change - it's the VA worker's that implement the rules

and shuffle the papers.

Think your pissed --- I'm still fighting claims issues from 1978.

Many here are in the same boat. Welcome aboard.

carlie

[Berta]

I think you guys are misunderstanding something here-

The Chronic presumptives are listed in 38 USCS 1191 and 38 CFR 3.309

If they manifest to at least 10% disabling , by medical evidence, within one year after discharge they can definitely be service connected.

I posted the chronic disabilities here before-

The word "presumptive " in these regs means presumptive period. For Multiple SClerosis the presumptive period is within 3 years after service.

Almost all others have the one year presumptive period.

I dont see OSA on the chronic presumptive list.

Can you get buddy statements that you snored a lot or had any other manifestation at all of OSA inservice?

Were you ever late for duty because you had trouble getting awake? DO you have your inservice personnel records?

The problem is that the regs and laws ARE set in stone.

We have to somehow shape our evidence to comply with the regs.

Ypur unit surely has a web site and perhaps you can find a buddy who could provide statement to VA showing your sleep habits were symptomatic of OSA.