Ask VA to Cue themselves?

[broncovet]

Berta (or others who have followed her advice "asking VA to cue themselves"):

Some years ago, I recall when you suggested "asking VA to cue themselves".  I can not locate this post.  Could you repost it for my benefit and the benefit of others?

At the time you posted it, I may have not been real keen on the idea, concerned that the NOD one year appeal period could come and go.  I have changed my mind!

I think it especially applies when VA did not read evidence, as they did not read my evidence.  This has happened to me multiple times.  

The first time was 2002.  I had an audiologist opine that my hearing loss was "at least as likely as not due to noise exposure in miliatry service".  In spite of this nexus, it was denied as too long of time has passed, was their excuse.  

They did the same thing in the most recent 2016 Board denial.  They stated:

"The Veterans Active duty ended (xxyear, many years ago).  This lengthy period without treatment for the disorder weighs heavily against the claim.  See Maxson v West, 12 Vet. App 453 (1999) aff'd 230 F.3d 1330 (Fed Cir 2000) (holding that sevice incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge).  

There is no positive medical nexus evidence in the claims file."  

end decision quote.  

I dispute the above.  First, the VA is required to use "the criteria" for rating.  They can not use "non criteria" and "length of time since service" is not a criteria for rating apnea.   More importantly,  its not applicable the length of time since service, since I was seeking sleep apnea secondary to already service connected depression.  I have no idea when sleep apnea began.  However, when I was finally diagnosed in 2007, the cardiologist noted that I have an enlarged right side of my heart, due to sleep apnea.  (The right side of the heart enlarges to compensate for lack of oxygen).  The fact that I was not treated for sleep apnea in service has more to do with the fact that the medical community did not even know what sleep apnea was, back in the 70's.  The medical community's inability to diagnose or treat sleep apnea in 1970 does not equate to me not having the disorder.    Alex had the same issue with Hep C, which was not known about until well after he exited service.  Because there was no test for hep c, did not mean he did not have the disease/  

Mostly, however, I dispute the last sentence in the decision.  My doctor specifically said that my sleep apnea was "the result of depression", but the va did not bother to read this.  

Thanks, berta, you may have even had a "template" for "asking the VA to cue themselves.  Sorry I cant find it.

[Berta]

Here it is Broncovet and I will bump it up too:

http://community.hadit.com/topic/51069-requesting-the-va-to-call-cue-on-itself/

I had to use Google to find it ....do we still have a google search button here at hadit???

 

[broncovet]

Thanks, Berta.    I just searched "hadit" and did not use google.  My mistake.  

[ketchup56]

Can't believe the bva is still using that outdated ruling about "many years without treatment ".Unbelievable. ...Have you had SYMPTOMS of your condition(s) for those many years is the question?  CONTINUITY OF SYMPTOMATOLOGY is what you need to counter their reasons and basis. This is done with your lay statement of the symptoms you've had along with Court precedence starting with Buchanan v Nicholson and of late Davidson v Shenseki. These two rulings along with Savage v Gober really gave veterans an way out of that ruling about no treatment for many years. You must have had a rookie write that decision. The regulation requires "continuity of symptoms "NOT TREATMENT.  JMHO

[Berta]

That is a good comment, ketchup56.

Two  of my claims  that arose from my husband's death had no diagnosis of 2 main disabilities he had , in the VA medical records.

He had considerable documented symptoms in his Med recs, to include blood chem reports and EKGs etc,, but with no treatment from VA for them,  because of no diagnosis for them.

Both of those claims were awarded as direct SC under the AO presumptives, as contributing to his death (AO DMII) and the other as directly the cause of his death (AO IHD)

Those awards trumped the 1151 DIC they had given me due to malpractice.

I gave minimal lay evidence, as to what I observed as his spouse in those claims,because I had found far more than enough probative medical evidence in his VA recs to support the awards.

I also had 3 IMOs for the DMII claim (BVA made that award) and also a critical VA report for the IHD claim, that VA had told me, since 1995 when that Peer report was done, had Never existed. I found it when I ordered my C file. It was right at the bottom of the stack. 

 A 'symptom' might well have a documented record in the medical files.

The original VA diabetes training letter of 997 ( they have since narrowed it down a little) contained a vast amount of symptoms anyone with diabetes could have.

I studied every symptom they listed (such as oral candidiasis for example) and found prime facie proof in my husband's med records that he ,in fact, had multiple symptoms of diabetes noted in the record.

He had been prescribed something called Swish and Swallow for this candidiasis condition and the research I did ,plus the VA print out, indicated they gave it to him solely to treat diabetes.

That was just a minor part of my claim. The evidence grew and grew the more I read his med recs and studied endocrinology

It took a lot of time and research but when I paid for my IMOs I knew the IMO doctor would agree with my lay diagnosis of diabetes mellitus and he did.

 

 

 

 

[Berta]

Just to add however, that VA justifies many awards with the fact that the veteran had continuous treatment for the disability.

About 20 years ago CNN or some news outlet interviewed a SC PTSD veteran.

He was sitting in a room filled with years of boxes of VA prescribed meds for his PTSD. He had never even opened the pill bottles and said he would never take any meds from the VA.

My immediate thought was if anyone from the VBA  or his RO saw that, they might sure have proposed to lower his comp.

VA rational sometimes is, if you don't follow their treatment plan, then you don't have a disability....when it comes to MH stuff.

[broncovet]

Thanks, Ketchup, for that informative post, and I will look into it further, reading those cases you cited.    Like Ms Berta's late husband, I had "symptoms" of this disease "for many years", but

VA failed to diagnose and treat it.  VA would not have diagnosed and treated my sleep apnea, either, had I not had an incident where I had chest pains and the VAMC was full, and not accepting patients.  So, I went to a private hospital.  There, the cardiologist, in 24 hours, diagnosed what was wrong with me.  I had an enlarged right side of the heart.  This comes from years of sleep apnea, when the oxygen level plunges (while sleeping) and the right side of the heart expands to compensate.  The right side of the heart expansion does not happen overnight!  

I took the doctors report, and was able to get a sleep study, and sure enough, sleep apnea was confirmed by VA.  Its not my fault the Va, for whatever reason, was unwilling/unable to diagnose and treat sleep apnea until, by a miracle, I was forced into private treatment.  I had been a VA patient for 12 years, and no sleep apnea diagnosis, but a private hospital did just that in 24 hours, by looking at my EKG and other heart related tests.  I had been through a full gambit of VA heart tests about a year prior, and they did not diagnose sleep apnea.  

A few years ago Alex Graham pointed out that VA denied hep c claims because of "no diagnosis in service".  The problem with that is that Alex's service was in the 70's, and the test for hep c came out in about 1980's.    In other words, Vets still had symptoms of hep c, but VA could not/would not diagnose it until years later (and often not even then, special tests have to be ordered, routine blood tests dont detect hep c.  This is very bad and means people infected with hep c can donate blood and infect the blood recipient)  

A similar thing happened with sleep apnea.  I never heard of it in the 1970's.  I think it was Reggie White who died from sleep apnea in early 2000's, raising awareness.  The VA is trying to "blame the Veteran" for VA's failure to order a sleep study and diagnose and treat sleep apnea.  The VA should be happy I dont sue for "late diagnosis" of sleep apnea which adversely affected my health.  My oxygen level went down to 84% at night, and this is bad for your health as body organs are getting far less oxygen  than they need to remain healthy.  My cardiologist said that if I did not treat sleep apnea, it would be a death sentence, the only thing unknown is when.  There is no doubt that private hospital diagnosis of sleep apnea, in 2007 saved my life.  

    Im hoping Alex will weigh in, because he is the hep c expert, and there was probably a landmark hep c case where VA had to stop denying hep c because it was not diagnosed in service, when there was not test for it.  Hep c has a natural progression that leads to liver failure and death, but it takes many years for the hep c virus to overwhelm and "kill" the liver.