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Ask VA to Cue themselves?

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broncovet

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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.

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  • HadIt.com Elder

http://www.hadit.com/4-things-veterans-should-know-about-va-sleep-apnea-disability-claims/

 

source: Attorney Chris Attig

 

..................Buck

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All this is good. However you must attack the reasons and basis of the denial which was "No Treatment for Many years after Service ".This is what your attorney must overcome just for Remand from Cavc to your varo. A good attorney will spot this phoney denial in 0 seconds flat.  I did an I'm no lawyer. Did you notice they (bva) never mentioned his IMO evidence ? Why because it's good evidence however they saw another out for denial and they used it. Good research will show how that particular reason for denial is no longer valid IN MOST CASES . Let us know what your legal Begal says on this. They tried the same reason on my appeal only mine was by the c&p examiner who stated no treatment for many years therefore it less likely as not service connected. .I had no service medical records and no record of being treated after service for 30 years no IMO just good lay statements and a current diagnosis and I linked it all back to military service and won at bva. Chris Attic knows this and if you buy his book I bet your last nickel this theory will be one for thought.    JMHO 

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The IMO together with your lay evidence  is what gives you the NEXUS they are looking for. SELF MEDICATED YOUR SYMPTOMS FOR MANY YEARS. .THAT bridges the gap between service and now as far as Continuity of SYMPTOMATOLOGY.  JMHO. 

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  • HadIt.com Elder
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just a thought, You have evidence that was not consider,

before I go before CAVC I would ask BVA to consider this

information before I go to CAVC. If after all this and you have

to go to CAVC file the Cue AFTER a decision from CAVC. Could end up

like me right back where I started from the RO got to consider the evidence.

Might save some time. that's just me. I believe BVA has to have

time to consider the info. Not sure if  the 120 days apply to this or

not I know they have to consider it.

 

Edited by RUREADY
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18 hours ago, Vync said:

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

§3.303 Principles relating to service connection

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.

 

 

 

Sorry , Charlie. You cannot use 3.303(b) for chronicity or continuity since the Walker v. Shinseki decision came out. You can use 3.303(a) which pretty much mimics 38 USC 1154(a). 3.303(b) is only for presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents. If due to herbicides, use 3.309(e) and choose from the list. The only ones who could get a bye on this are combat Vets who can testify to whatever they want to and be believed.

Walker poked a gigantic hole in 3.303(b) because no one noticed the reference to 3.307 all these years ( 26 FR 1581, Feb. 24, 1961, as amended at 35 FR 18281, Dec. 1, 1970). 

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