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.

[joeyjoeyb]

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.

Berta,

I submitted buddy letters and a letter from my wife that explains alot of symptoms. Not sure what else I can do. They denied it because they said lay statements do not work. It is in this thread the reason for the last denial.

[Vync]

Joey,

I re-read everything and you're right. This one has me baffled too. The only three items present are his wife's statement, a sleep study performed by the VA after service, and granting based on benefit of the doubt. It clearly indicates that there is no medical evidence during service. It even goes so far as to explicitly state "as likely as not". It's like they are saying they cannot prove SC, but we take your wife's word for it.

I saw a similar case where some guy hurt his back one time lifting a bag or something while in service. Other than that, no evidence at all except records of him going to the doc and every exam and test came back normal. The guy had pain complaints all the time. Range of motion, strength, everything was normal. The VA granted him SC based on benefit of the doubt. Then there are other folks that have real evidence of in service injury and real evidence of the painful residuals through today and SC is denied.

Cases like this make me want to try to send in a single letter requesting benefit of the doubt on every ache and pain just to see what the RO says.

Berta,

Thanks for clarifying the chronic presumptives. I remember reading the text like that in a number of BVA claims, but then looked up CFR 3.309 and saw the grocery list of conditions.

[carlie]

Look at the whole picture.

That claim was at the BVA level.

The BVA does not always list all of the evidence of record

in one of their decisions.

Many times evidence that has already been addressed in the

original decision,NOD,SOC,etc... is not listed in the BVA decision.

carlie

[Vync]

Carlie,

True, but they explicitly say that relative equipoise warranted SC, despite no evidence during service, and the remaining evidence was 'as likely as not'. For these facts to be present, there probably was not much else other than claim denials until it got to the BVA. For this guy to get SC based on this, all I can say is... wow!

I imagine that after receiving his CPAP machine, his wife realized that she had been missing out on a good nights rest for some time. She must have written one serious statement.

Joey,

Take Carlie's advice. Do not give up. If this guy won SC then it is possible that you can too. I would definitely appeal your case to the next level and include a copy of the BVA decision you quoted. Dig through your records and see if you can find anything even remotely related to sleep apnea or any of its symptoms. Look on the back of every page of your medical records. Sometimes they get lazy and use the backs of the pages. Also go back to the doc you ordered the sleep study and ask him if he could write a nexus letter. From what I have read, doctor statements weigh more heavily than regular lay statements. Do not give up. And definitely keep us posted on your progress.

[Ricky]

Joey your claim should be fine. As to the waiting game and application of the rules you hit the nail on the head - subjective.

However even in our justice system the same thing happens with decisions. You have a circuit court that issues a decision based on the judges interpetation of the law. You do not agree with his interpetation so you have the opportunity to take your case to the court of appeals. The appeals court judge agrees with the district court judge and continues your denial. You then have the opportunity to send it to the state supreme court. The state supreme court looks at it and says those other two guys were off in their interpetation of the law so he changes the decision and grants whatever you were claiming in your case.

Now the legal system was using the Constitution to decide your case and it took them several years to settle it. The judge's actions were based on their subjective reading of the law. The VA system, although an administrative system, follows the model of the legal system however, they do it with simple minded, poorly trained normal people off the street who interpet and apply the law, rules and regulations that govern the VA - so you see even the legal system can get it wrong at a couple of levels and that is doing it with highly trained, very experienced legal experts interpeting the laws that govern us.

I understand your flustered feelings. Sometimes they go away and you stop thinking about your claim and other times your claim and the process controls your every feeling and action. We all have been there and some are still there fighting the system. It will all work out in the end my friend. Just try and remove it from your mind so you can have some peace and quite and enjoy your life - I know this is easier said than done but you can do it.

Edited November 19, 2009 by Clown Man

[allan]

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

Just for accuracy, I believe the presumptive period for Multiple Sclerosis is 7 yrs after seperation.