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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

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broncovet

Ask VA to Cue themselves?

Question

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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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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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.

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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..

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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
      • 2 replies
    • Exams that were being sent strictly to contractors before, due to VAMCs not being open, are starting to be routed back to VAMCs. This is going forward from last Friday- not sure if prior scheduled exams will be re-created for VAMC vs vendor.
      • 7 replies
    • Mere speculation in your VA C and P exam

      M21-1, Part III, Subpart iv, Chapter 3, Section D – Examination Reports III.iv.3.D.2.r. Examiner Statements that an Opinion Would be Speculative Pay careful attention to any conclusion by the examiner that an opinion could not be provided without resorting to mere speculation (or any similar language to that effect). VA may only accept a medical examiner’s … Continue reading
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    • It's time to ask for help from the community. If you can help with a gift it would be very appreciated.

      Fund HadIt.com Veteran to Veteran LLC


      Give a financial gift to help with the upkeep of HadIt.com. HadIt.com is NOT a non profit. Gifts are not tax deductible, they are just gifts. 
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