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]

18 hours ago, RUREADY said:

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

It might seem like that, but lay statements can help tip the scales.

Lay statements can help show continuity of symptoms which would be very helpful to direct SC, even though Broncovet's case more appropriately centers around secondary SC.

For example, the military performed minor surgery on my head and afterwards I began having really bad headaches more and more frequently. After I got out, I filed a claim for direct SC and eventually won. However, the headaches still continued. An older veteran friend of mine kept a blood pressure diary and suggested I keep a daily pain diary describing type of pain, severity, limitations, and self medication. I did this for quite a while and when I filed for headaches as secondary, I submitted a copy of the diary. Even though it helped show documented continuity of symptoms (not really required for secondary), it was a source of competent credibility and the C&P doc opined in my favor after putting me through a ringer of tests. The VA also used it to base the rating %.

[FormerMember]

Maxson v. Gober (Maxson v West Fed. Cir) has had so many holes poked into it over the years I'm surprised VA still trots it out. We went through that one again and again on appeal for Hepatitis C claims. VA kept saying there was no evidence of HCV in 60s-80s service treatment records. Well, duuuuuuuuuuuuuuuuh. They didn't isolate it until 1989 and developed a commercial test for it by 1992. 

I would google Maxson in the BVA decisions and see how it is used. Likewise the CAVC search engine. It has narrow applications and can be easily overcome with a well-constructed nexus. We can blow bubbles about this one until the cows come home but anything short of a concise nexus with a gazzilion cites will be necessary. The reason I say that is there will be a rush to the claims trough for Vets with depression claiming the exact same thing. If you work in a law firm, you can use Westlaw at $59/minute to pull up the cites in a few seconds.

[rwskitch]

...Westlaw is excellent, we used to get free access at the county's 'Legal Law Library' next to the Courthouse, thanks for the reminder, I'll check that out...!

[RUREADY]

good read in 2000 you better have a good lawyer

to win this now. keep reading how many have won on this

lately. A good nexus might help. Help off no records of treatments???

I wish it is that easy. Appeals for years to come and can be done

sooner with evidence. If attorneys wont take claim, nothing involve for him to make money or he think he cant win. if it was easy every attorney would be on it. GOOD LUCK jmho

 

Edited February 27, 2016 by RUREADY

[TALON II FE]

They have been slowly cracking down on sleep apnea for a few years now.  They have had a planned reduction in the % for SA for several years (I believe they are dropping down to 30%, but I can't say for sure) and I believe this is the year it was planned to happen, unless things changed.  I am glad I went and did the sleep studies and got a diagnosis before I retired.  As an aviator, I 'knew' I had it since I returned from my second ROT in 2005 but could not get treatment, etc. without losing my flight status for good, so I had to wait until something else medically disqual'ed me from flight before I pursued it about a year or so before I dropped my papers. 

[ArNG11]

1 hour ago, RUREADY said:

good read in 2000 you better have a good lawyer

to win this now. keep reading how many have won on this

lately. A good nexus might help. Help off no records of treatments???

I wish it is that easy. Appeals for years to come and can be done

sooner with evidence. If attorneys wont take claim, nothing involve for him to make money or he think he cant win. if it was easy every attorney would be on it. GOOD LUCK jmho

 

Yeah I've met a few of those. It's all the more satisfying when you win something that a law dog said was not possible. If it has merit and you have the three tier package for service connection fight it. JMO