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.

[FormerMember]

Forgot to add, you might consider using Wilson (Lawrence) v. Derwinski  (1991) for the proposition that 

"The regulation requires continuity of symptomatology, not continuity of treatment.

[ketchup56]

Wilson v Derwinski that's the winner. ..Again THE REGULATION REQUIRES CONTINUITY OF SYMPTOMS NOT TREATMENT. ..Drinking lots of coffee to keep from falling asleep while driving because you were up all night from your sleep apnea SYMPTOMS is considered SELF MEDICATING....JMHO..

[RUREADY]

1 hour ago, ketchup56 said:

Wilson v Derwinski that's the winner. ..Again THE REGULATION REQUIRES CONTINUITY OF SYMPTOMS NOT TREATMENT. ..Drinking lots of coffee to keep from falling asleep while driving because you were up all night from your sleep apnea SYMPTOMS is considered SELF MEDICATING....JMHO..

you got to prove it. I think just you saying you had

a disability years ago I just don't think you can win.

I will read this case and it maybe it would work. Your continuity

of  symptoms could be anything you are treating yourself for

it could be treating from crack addiction. Was that military fault. you just got a long and hard time to prove it. VA would owe a lot of

vets money if it works. I could be missing the whole point about this  and on strong meds don't help jmho

Edited February 24, 2016 by RUREADY

[broncovet]

This is an interesting discussion, and instructive but MAYBE a bit off track.  Im not trying to prove sleep apnea as a primary, even tho that MAY be possible, like Ketchup says, because competent lay evidence can be sufficient if its not contradicted by the medical evidence.  I simply think sleep apnea secondary to depression is "a done deal" once I have a current diagnosis and a nexus between the current condition and a service connected condition.  

If Im getting this, there are some big differnces between primary and secondary conditions.  

The Primary (direct) service connection must have all 3 Caluza elements:  current diagnosis, in service event or aggravation, and nexus between the two.  

However, secondary service connection need not have all these  elements.  It needs only 2:

1.  Current diagnosis (of sleep apnea).  Check, I have a current diagnosis. 

3.  Nexus linking current diagnosis (sleep apnea) to a service connected condition, in this case depression.  

That is, the second element (in service event or aggravation) is not required because this was already established, and need not be duplicated.  This is what secondary conditions are about, you are not claiming it happened IN SERVICE, you are claiming that your SC condition caused it.  

[ketchup56]

However again the denial" reason and basis "was only that you lack "Treatment for many years after service ". What regulation can you find that MANDATES that a veteran must have his conditions whatever they may be treated by a doctor? Many veterans go years without getting treatment for their medical conditions. However there is a Stature that holds that REGULATION REQUIRES CONTINUITY OF SYMPTOMS NOT TREATMENT.  This is what you were actually denied for not having treatment. I agree this topic is getting more and more convoluted as we go ..

JMHO 

[RUREADY]

it hard to win with a credible IMO more less than you

having no treatments records, plus lay statements is just

that. Your thoughts and if you are not a doctor means nothing

for this. Its his claim do what you got to do. Good Luck

Edited February 25, 2016 by RUREADY