cue Help with reopening claim or CUE?

[Darc_wolf]

Hello,

I am seeking help on reopening or CUE-ing  a denied claim from 2015. I gave up fighting for a while and just recently had a claimed competed. I am seeking one of the toughest claims to get connected for (sleep apnea) and just wanted to see what you all thought of the denial reasoning and DBQ? I had a chance to look at some of my STR's and they stated a few times untreated hypertension which I wasn't aware at the time was resulting from OSA which I was diagnosed with four years after leaving the military. I am still waiting on a c-file that I put in for as of June. I have also gotten together two buddy letters and was wondering if you all think I should go ahead and spend the money for an IMO. I am currently using a CPAP after being diagnosed on 2005. Please forgive me if I am all over the place this is my first post though I've been lurking for a while. :)

 

[broncovet]

As always, stick to the basics.  Reading your records will provide you with clues of what to do next.    You need the Caluza triangle for service connection, and you should check your records (read them) and see, before spening money on an IMO/IME.

1.  Current diagnosis

2.  In service event or aggravation

3.  Nexus, or doctors opinion which links 1 and 2. 

      An IMO/IME will "not" fix a lack of in service event or aggravation.  It WILL fix a lack of nexus or maybe provide a diagnosis.  Dont spend money on an IMO to try to get an in service event.  

      Since you have been using a cpap since 2005, I can presume you did not borrow your neighbors cpap and use it without any diagnosis of sleep apnea on your part.  

      You may need to look at the "in service event".  What "event" are you alleging caused sleep apnea?  Were you punched in the face and it broke your nose?  I think it will be difficult, but not impossible, to use JUST "buddy letters that you snored" as an "in service event".  I think you may need something more, especially since VA is cutting back on sc for sleep apnea.  

When you get an IMO/IME which "links" sleep apnea to an "in service event", you may need to show HOW that means your sleep apnea was caused by service.  In other words, ok, so you snored in service, and snoring is even a symptom of sleep apnea..but the snoring didnt CAUSE your sleep apnea, and you are trying to identify a "causitive" event.  

      Assuming your sleep apnea is OBSTRUCTIVE, rather than CENTRAL, sleep apnea is often related to excess weitht    Did you gain weight in service?  

     Getting SC for sleep apnea is not childs play.  

     I applied for and was denied SC for OSA.  

     You may look into secondary causes of OSA, if you have other SC conditions such as depression ptsd or anything related to a face or neck injury.  

     Attorney Chris Attig has a download for connecting sleep apnea.  And I dont think its free, but its probably worth it.  It wasnt worth it for me, as Im already 100 percent.  However, Im reconsidering downloading Chris Attigs book on sleep apnea, because a SC for sleep apnea definately means I would get statuatory SMC S.  However, Im rather overwhelmed right now on lots of other stuff, so Im going to wait until the smoke clears before I go back into the ring again with VA on sleep apnea.    Fighting VA is, well, exhausting.  I have fought them for 15 years now, and I probably have at least 5 more years.  After denials, the VA's "favorite thing" is making you wait 20 years for benefits.  

[broncovet]

Right now, I dont think you are "ripe" for filing a Cue, and it would be premature.  You shouldnt even think of filing a CUE until you have NOT ONLY all your service records and cfile, but you can "name" the regulation VA violated in the CUE.  

However, after you read your cfile and can point to something and say, "There is the CUE", then you can/should consider the CUE.  It helps to remember CUE as a "standard of review" not an error, because most errors are insufficient to be cue.  For one thing, the error has to be "outcome determinative".  If they forgot to dot an I or provide the duty to assist, that isnt CUE.  

In addition, Cue has to be "undebatable", AND based on the laws at the time.  

Often, reopening due to 38 cfr 3.156 is more effective than cue and produces a similar result.  You see, if the VA "didnt have that information" in your file, then its not cue for them to base your decision on what they DID have.  So, the procedure is to submit the new information and ask VA to reopen it and make a new decision based on the new evidence.  

[Berta]

" I had a chance to look at some of my STR's and they stated a few times untreated hypertension which I wasn't aware at the time was resulting from OSA which I was diagnosed with four years after leaving the military."

Has any doctor stated ( and documented in your records )that the untreated HBP resulted from the OSA?

Can you scan and attach here the denial letter as to their reasons and basis?(Cover C file #, name, etc prior to scanning it)

Could the OSA be in any possible way related to the 60% you get now?

You will need new and material evidence to re open this claim. The buddy statements will help if they were in your same unit, same time/ place, but they sure might not be enough.How soon after discharge did the HBP get treated properly?

[Darc_wolf]

Thanks for the reply broncovet, I was prescribed the CPAP in 2005 after an in home sleep study. I have been service connected for asthma @ 30%  since April 2000, I was diagnosed early in my STRs. I was going to use as part of my claim the fact the asthma prevented me from maintaining physical readiness as my military records showed failed PRT's when I left the ship and rapid weight gain from 1997 to 2000. I figured since the VBA examiners consistently deny OSA on the basis of obesity I would use this little gem in my claim as well. ( The Board notes that the VA Office of General Counsel released an opinion in January 2017.  This opinion, VAOGAPGCPREC 1-2017, holds that obesity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a).) 

I figure that and the buddy statement would show etiology of a disease that takes time to manifest. I have provided a link below so that anyone can review my redacted denial letter and the lam DBQ it was based on.

 

Redacted Info

[Darc_wolf]

Hello Berta I am honored to have both you and bronco reply.

No doctor has linked the HYT, I just assumed it as I didn't have HBP before service, but it started showing in service. I believe the asthma which affected my ability to exercise led to weight gain which is over 70% of the reasoning examiners use to deny OSA in the BVA cases I have reviewed.

[Tomahawk]

The major problem with your "little gem" is that you still have to have a doctor backing your statement.

" 15. A determination of proximate cause is basically one of fact, for determination by adjudication personnel. VAOPGCPREC 6-2003 and 19-1997. With regard to the hypothetical presented in the previous paragraph, adjudicators would have to resolve the following issues: (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the serviceconnected disability was a substantial factor in causing hypertension; and (3) whether the hypertension would not have occurred but for obesity caused by the service- 10. Executive in Charge, Board of Veterans' Appeals (01) connected back disability. If these questions are answered in the affirmative, the hypertension may be service connected on a secondary basis."

You will have to have a doctor state that your SC disability caused the obesity.  Which will be much more difficult than you'd expect.  Yes lack of exercise due to your SC disability may have been a contributing factor, however your eating habits are more than likely the primary cause in most doctors "professional opinions"