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mountain tyme

Re-Opening A Closed Claim That Was Denied

Question

Hello, I hope everyone is well. I need an opinion to this claim. A friend of mine asked me if her husband John can re-open two closed claims that were both denied based on a letter they received last week from his Cardiologist.

Here is a little history of his claim.

John put in two claims with the VA for comp. one was for sleep apnea denied 3 years ago because it was not diagnosed while in service or within the 1 year window after retirement. It was diagnosed a little over 2 years later after retirement.

Second claim was for HTN this was denied because the VA stated that “after a 5 day b/p check high b/p was not detected.

What I read in his service military records was that in 87 his

b/p was within HTN levels and the doctor requested a 5 day check . The next medical note made right after that request was made 8 mo. after that appointment with no mention of a 5 day check or a check at all. By this time he had pcs and forgot all about it, he actually said he never recalled the doctor asking for him to have a check done and no mention of high b/p.

In 1988 he ended up in the Cardiac ICU unit at the local hospital the AF base emergency room had his transported there do to arterial fib. 3 days later he was released because it resolved on it’s own. Noted was that the Civilian hospital ICU Cardiologists requested firmly that a catherazation be done to rule out CAD the test was not done due to the base hospital stating It would be performed at a base hospital the test was never done.

A year after that again during a yearly physical again another doctor wrote in his records HTN? Again a 5 day b/p was requested again after reviewing his records I did not see where it was done and neither my girl friend or her husband was aware that the doctor even thought he might have had High b/p.

Her husband did request to see the 5 day checks from the VA since that is why he was denied HTN and that was 2 years ago. Still waiting to see where they found those tests.

Now for the new development.

Last year John had to have a pacemaker put in due to slow heart beats…during his check up his Cardiologist asked him to bring in all his medical records pertaining to stress tests ect. John brought in a copy of his service medical records. After he review them he called John a few days before the pacemaker implantation and asked him if he was ever placed on high blood pressure medicine while active duty or if he was asked about his sleeping habits because of his tension headaches and fatigue he said no they told him he had migraines.

Also in John Medical records were the 5 buddy statements he received from men he shared quarters with thought out his AF career and they wrote that he would snore so loudly that they could hear him down the hall and one of his supervisor wrote a statement that John would come to work often fatigued and he remembered going tdy with him a few times and he did snore so loudly that he had to pay to have a room of his own because he couldn't get a good night rest.

But he was diagnosis with sleep apnea 2 years after he retired from the AF.

When John was sent a copy of his Cardiologist report the doctor put an Addendum to his report it states

“Mr. xxxx has snored loudly his whole life. His neck size has been greater then 17 inches (a strong correlate with sleep apnea risk) since he has been 20 years of age. During his time in the military (he was in the military until 19xx) he had untreated sleep apnea. His untreated sleep apnea likely contributed to his ultimately development of hypertension, symptomatic bradycardia and need for permanent pacemaker implantation.

If you have any questions please contact me."

Sincerely,

Dr. xxxxxxxxxx MD

(This Cardiologist is well known and is best known for his studies in the field of cardiovascular medicine, he also is a professor who teaches at universities about cutting edge developments in his field)

So would this addendum be enough to re-open his two closed claims would this addendum be considered new and material evidence?

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Maybe this will help:

YOu do not need to prove "CUE" to reopen based on N and M Evidence. You simply need new and material evidence. Read especially 38CFR 3.156 a, b, and c.

Do remember this, tho: When you reopen due to N and M evidence, you "lose" your original effective date, and your effective date becomes the date you reopened the claim due to N and M evidence.

In order to "preserve" your effective date there are a few methods:

1. 38CFR 3.156 C The way you preserve your effective date here is that this is new "SERVICE records". If its New evidence, then the effective date is not preserved, if its new service records its preserved. Keep this in mind when you reopen.

2. Regular, timely filed appeals. This is not an option if your RO decision was over a year ago. An appeal, if successfull, will revert back to the original filing date AND you are allowed to submit additional evidence in support of your claim, regardless of the date of the evidence.

3. CUE. There are many resources on hadit for CUE.

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There is another thing about having a doctor state he has reviewed the vet's SMR's. You better actually have a copy of your SMR's in your possession. The VA can get picky and claim that unless you can prove you have a copy of C-File, SMR's etc that you don't actually have them.

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Tell him to request a copy of his C file from the VA regional office where his claim was processed, or where his file is now.

Those records will show him what the VA looked at when deciding his claim.

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Specific to sleep apnea. I have a BVA claim on my computer in which the SMR was silent for any symptoms, diagnoses or treatment for sleep apnea. However, the veteran stated that he snored loudly while in the military. He did not even have buddy letters. The case was awarded based on the fact that the veteran can testify to a fact that he snored while in the military.

The issue is whether or not this will be direct service connection or a CUE. And as Broncovet pointed out what will the effective date be.

See this case.

http://www.va.gov/vetapp11/Files1/1108302.txt

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Just to clarify. I am familar with cases that were awarded for sleep apnea based on less evidence than what you added to the file since the prior denial. I am assuming the buddy letters were added after the previous denial. The letter from the doctor should be considered new and material. The buddy letters should be sufficient without the letter from the doctor to make the initial sleep apnea claim. However, do not be surprised if they pick it apart at the RO. If so, then you might have to get the doctor to be more specific as to the manner in how his determination was made.

When I filed my angioedema claim the law was quite different and I was required to show an inservice diagnosis, post service diagnosis and a nexus prior to the VA's duty to develop the claim was applicable. I got a letter from the head of immunology at a VA hospital who had been there for thirty years and performed C&P exams. I thought the letter was a slam dunk. It was denied by he RO stating the examiner did not read one medical report that was in the file. The report the doctor did not read was completely irrelevant. Also they claimed that the the doctor based his determination on my subjective statements. The doctor clearly stated that he made the determination based on the results of numerous blood studies. I was awarded by a DRO after pointing out that the doctor made his determination based on blood studies and that the report he did not read was for a different and unrelated condition.

Good Morning Ho2py...actual the buddy statements were part of the original claim I believe there 5 from veterans who where stationed with him in which one was a room mate and the other was his supervisor who was stationed with him on two different tours. The other 3 were also living in the dorms with him who could hear him sorning...the other one was from his wife and the other his eldest son who is also in the military at this time. The VA denied the claim because there was no diagnosis in his SMR....I think the vet is honest and I feel for him but as I told him that I have viewed some claims that the veteran medical records were quite clear that they had a condition and were still denied...it is not an easy process and dealing with the VA you have to have patience and determination...and a VALID claim. I think his claim is valid just not strong. Thank you so much for your insight.

God Speed MT

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