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.

[Vync]

7 hours ago, ketchup56 said:

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

This makes me want to go back and re-read some of my old claim denials...

[ketchup56]

Did you SELF MEDICATE your symptoms all these years? ?? What did the symptoms actually consist of ? How long have you suffered these symptoms? ?? This is what you need in your lay evidence. Veterans are always competent to note that they had/still have these same symptoms.  There is also NO REGULATION OR STATUS that says you have to be treated by medical personnel for your SYMPTOMS. The above cases I quoted above Clearly gives veterans the guidelines on the proper use of lay evidence and how va is to construe that evidence. 

[RUREADY]

            Just my thoughts. I would ask for reconsideration you have evidence

• They didn't consider. I would summit this evidence within the time
• Limit  because you can do this after a BVA denial before l would file a Cue claim
• But that's just me

[Vync]

18 minutes ago, ketchup56 said:

Did you SELF MEDICATE your symptoms all these years? ?? What did the symptoms actually consist of ? How long have you suffered these symptoms? ?? This is what you need in your lay evidence. Veterans are always competent to note that they had/still have these same symptoms.  There is also NO REGULATION OR STATUS that says you have to be treated by medical personnel for your SYMPTOMS. The above cases I quoted above Clearly gives veterans the guidelines on the proper use of lay evidence and how va is to construe that evidence. 

Broncovet is right. "Continuity of symptomatology" only applies to direct service connection:

§3.303 Principles relating to service connection

Quote

(b) Chronicity and continuity. ...Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

The VA screwed up by confusing direct SC with criteria for secondary SC.

However, but what if there was "continuity of symptomatology" and it was not realized prior to the heart diagnosis. It might be worth a closer look in prior medical treatment records.

SOAP
Understanding SOAP will not only help you help your doctor, but also might also be helpful to overcome the VA for denying due to lack of "continuity of symptomatology". Looking at each part of a prior medical record could make it possible to prove "continuity of symptomatology" existed to at least some degree:

Subjective
What you tell your doctor: I'm tired all the time and never get a good night's sleep because my wife says I snore a lot. I tried OTC Nyquil, but it doesn't work.

Objective
What the doctor can observes visually or with tests: Patient yawned a lot and almost fell asleep during the examination.

Assessment
This is the doctor's diagnosis.

Plan
This is what the they plan to do, such as prescribe medication, perform additional tests, or refer to a specialist.

 

I'm not sure if this really helps, but it could offer a new perspective.

 

 

 

[RUREADY]

it going to be hard to win without treatment records

[broncovet]

Ketchup

    I did not self medicate (sleep apnea), I just had to compensate.  In other words, since I knew I would be sleepy 30 minutes after sitting down behind the wheel of a car, I drank mucho coffee and could not drive more than about 45 minutes without stopping.  

    I specifically recall boot camp, where the CC made me stand holding a  "headache ball" above my head, since I would fall asleep in classes.  

    Its hard to believe they can hold my face to the grinder because of no diagnosis of sleep apnea in 1970's, when there pretty much was no such thing.  (People still had sleep apnea, but the term, treatment, and diagnosis did not happen back that far).