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.

[ArNG11]

Wonder how long before the VA tries to make the "GO CUE YOURSELF" not a possibility? Use this tactic when necessary, but only then. The VA has had the upper hand for far too long. Knowledge is definitely xpowerful.

[broncovet]

As in Hep C tests, there was no one testing for sleep apnea in thee 1970's yet.  So its real suprising there was no in service diagnosis, that "absence of evidence", is not the same thing as "evidence of absence".  

The only thing that the absence of evidence means is that sleep apnea was neither diagnosed tested or treated back then, it does not mean that it is certain I did not have the disease.  This is error when VA does this.  

[ArNG11]

Right on Broncovet.   The very same logic the VA uses to deny some of the theater claim, like Vietnam and Gulf war Veterans.

[FormerMember]

Loyal, one thing I have spotted is your use of:

As in Hep C tests, there was no one testing for sleep apnea in thee 1970's yet.  So its real suprising there was no in service diagnosis, that "absence of evidence", is not the same thing as "evidence of absence".  

I believe the cite you are looking for is "Absence of evidence is not negative evidence".  Here are a few decisions to support that philosophy:

In general, the Board may not rely on the absence of evidence as substantive negative evidence, the exception being when there is an evidentiary basis establishing that a fact in question would ordinarily have been recorded in the document or documents in question. See Horn, 25 Vet.App. at 239 (citingBuczynski v. Shinseki, 24Vet.App. 221, 224 (2011), and Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011)

[Buck52]

keep in mind that evidentiary evidence is good collective evidence and the Board has to consider it if they don't  then ask them to CUE Them self

''As asknod put up''

In general, the Board may not rely on the absence of evidence as substantive negative evidence, the exception being when there is an evidentiary basis establishing that a fact in question would ordinarily have been recorded in the document or documents in question. See Horn, 25 Vet.App. at 239 (citingBuczynski v. Shinseki, 24Vet.App. 221, 224 (2011), and Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011)

it seems the VA is playing mind games with you broncovet...your going to have to use there own ammo to fight them  and they don't like that but when veteran uses there own laws to fight them it makes them look pretty darn stupid when the veteran wins  so in reverse psychology(so-to-speak)  you fight them with there own words.

 

[anglersd]

On ‎2‎/‎24‎/‎2016 at 4:05 PM, RUREADY said:

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

Don't know how "crack addiction" got into this but what ever!

Continuity of symptoms can be proven with lay statements, witnesses, over the counter meds. Just have to be careful on how it is worded in the statements as to not come off as you're some sort of a Dr unless you have that experience and degree. You just have to report things related the SC without giving any diagnosis. Lay statements work cuz I've used them and was granted.

Good luck