CUE for Denied claim?

[blahsaysme2u]

I have been debating on posting my first entry into the forum for about a week now. I had previously just been scanning and reading everyone’s posts, but hadn’t created a profile. So here we go.

I joined the army in 2003(National Guard to be truthful) and did 1 tour in Iraq in 2007-2008 providing convoy security. Without going into too much detail,(not needed for this question-maybe ill post more later) my company did 3x wk. missions and were hit with IED just about every time we went out the wire. But again that doesn’t really apply to my question here.

In 2008, when I first returned home, I had my first experience with the VA and my dr sent me for a C&P exam. One of the claims I was seeking treatment for was sleep apnea that my PC thought I had.

Long story short, the claim was denied (actually all my claims were) due to lack of evidence. My medical files from the army had been lost and I was told there wasn’t much I could do. After my C&P though, my dr did send me for sleep study and I was officially diagnosed with sleep apnea and given a cpap machine. I have used it ever since (changed my life)

Fast forward to 2012, my medical records magically showed, the VA did a review of my previously denied claims and I was approved for a few. But my sleep apnea was denied again. I didn’t appeal and I forgot all about it until recently, since I have reopened some claims due to needing increases.

Soooooooooooo, I did reopen my claim for sleep apnea but now I realize I may have CUE because I was actually diagnosed while still in my contract (I didn’t get out until 2009 and was still in selective reserve until 2011)

Anyone have advice or pointers on this?

Thanks in advance
 

[JKWilliamsSr]

If it is in your medical records you can request that it is reopened citing 38 CFR 3.156 .  You do not have to file a CUE on this because of the fact that the records have reappeared.   My suggestion is that you when you request the reopen you submit the pages from your medical records that support your claim for sleep apnea.   The VA from my own personal experience will sometimes miss obvious information that are in your records.

[Berta]

Right!

"my concern is that I am being told I will only be paid for from the reopen date(06/2018) till now instead of the original claim from 2008. is this not true? "

If you are successful under 38 CFR 3.156 or CUE ,the retro will go back to original claim date.

 

"also, could I get some input on the below? "

"2. I was told that CUE could be done 1 per claim item- not 1 per veteran? Is this not the case? Can you please show me where the VA says that?"

I am a successful cuerino-I have filed multiple CUEs on multiple items-that s not in the CUE reguation.

One 1998 decision alone ,that I got ,contained 4 or 5 CUEs.

3." I was under the impression that if you have a diagnosis or injury, it is considered service connected( like workers comp for injuries that happen at work but not necessarily because of the job)regardless of nexus to service. If I do need the "at least as likely as not" the veteran's Sleep Apnea is due to or the direct result of military service" statement to prove service connection, any advice on how to proceed?"

"I did reopen my claim for sleep apnea but now I realize I may have CUE because I was actually diagnosed while still in my contract (I didn’t get out until 2009 and was still in selective reserve until 2011)"

You can send a 21-4138 form ( available here) telling the VA of this  for the SA claim with referral to highlighted copies of the SMR entries and diagnosis, as enclosed with the 21-4138 form.

 

4. My current sleep apnea dr refuses to fill out a dbq. I was told they are not "allowed" even though I showed her where on the VA website it clearly says they are allowed. Any advice on getting this?

Do you get any private care for the SA?

We are opining here on the 3.156 regulations  that seem appropriate to your issues to include the question above (#3) without seeing their denials.

However,can you scan and attach the denial for the Sleep Apnea?

along wth the Evidence list? Cover your C file # ,name,address prior to scanning it.

I agree that these are 3.156 issues but maybe the vet rep say something that raised to level of CUE-yet whatever advice you got on CUE from the rep or VSO seems to be wrong.

We have a wealth of info on CUE here in that specific forum. But 38 CFR 3.156 (c) appears to be the way to go.

 

 

 

 

 

 

[JKWilliamsSr]

11 minutes ago, blahsaysme2u said:

so the above is from 38 CFR § 3.156 - New and material evidence. I am having a hard time deciphering, but does this mean that claims with found medical records can have an effective date of the original claim even though I never appealed it?

Based on what you have said the effective date should be the date you filed the original claim because you are reopening a claim based on new and material evidence.

The key statement in the regulation is this.  "An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. "

Now they denied the claim because of lack of evidence.   They did not have your records and could not determine service connection.  Eventually they would get the records so it does not matter if they get the records 1 day or 100 years after you file the claim the original date should go back to when the claim was decided.   By reopening the claim the are pretty much acknowledging that the evidence now is new and material.

BUT......whoever is rating your claim probably does not care or is ignoring this fact of law.

Here is some case law on this particular issue:

Although an effective date generally can be no earlier than the date a claim to reopen was submitted, there are exceptions. One such exception is when the claim is reopened based on previously missing service medical records, in which case the effective date can be as early as the date of receipt of claim on which a prior evaluation was made. 38 C.F.R. § 3.400(q)(2) (2007). Taylor v. Nicholson, 21 Vet.App. 126 (2007).  

 

[JKWilliamsSr]

46 minutes ago, blahsaysme2u said:

sorry, I guess i didn't explain well.

I was denied in 2008. then in June of 2018, i reopened it along with some new claims with help from the VSO. it just recently was deferred but i have not received anything in the mail yet.

Ok....I think I have it all now.  I think you explained it well enough I just misunderstood some things.

Based on all the information once your claim is finalized you should get necessary rating and you should get backpay from 2008 and if I did the math correctly Sleep Apnea should take you up to 80% (rounded up because the total I came up with was 78%)

[broncovet]

Dont do a CUE, instead file a motion to reopen via 38 cfr 3.156 c, which addresses the exact concern you mentioned...lost medical records now found.  

Or, try this:  Go on the show "Jeaprody" and, IF you can answer every single question correctly, then file a CUE.  

You see, you just raised the bar to one "very hard to jump over" unnecessarily so, by filing a cue.  

Dont make it harder..winning va benefits is already challenging enough for most of us.  

However, after you have gotten your law degree and practiced Veterans law for 10 plus years, then maybe you would enjoy such a challenge.  Not me, tho.  The cue "standard of review" prohibits the "benefit of the doubt" and there is no sense throwing this advantage away.  

https://www.law.cornell.edu/cfr/text/38/3.156

Edited February 12, 2019 by broncovet
add link

[doc25]

1 hour ago, blahsaysme2u said:

I have been debating on posting my first entry into the forum for about a week now. I had previously just been scanning and reading everyone’s posts, but hadn’t created a profile. So here we go.

I joined the army in 2003(National Guard to be truthful) and did 1 tour in Iraq in 2007-2008 providing convoy security. Without going into too much detail,(not needed for this question-maybe ill post more later) my company did 3x wk. missions and were hit with IED just about every time we went out the wire. But again that doesn’t really apply to my question here.

In 2008, when I first returned home, I had my first experience with the VA and my dr sent me for a C&P exam. One of the claims I was seeking treatment for was sleep apnea that my PC thought I had.

Long story short, the claim was denied (actually all my claims were) due to lack of evidence. My medical files from the army had been lost and I was told there wasn’t much I could do. After my C&P though, my dr did send me for sleep study and I was officially diagnosed with sleep apnea and given a cpap machine. I have used it ever since (changed my life)

Fast forward to 2012, my medical records magically showed, the VA did a review of my previously denied claims and I was approved for a few. But my sleep apnea was denied again. I didn’t appeal and I forgot all about it until recently, since I have reopened some claims due to needing increases.

Soooooooooooo, I did reopen my claim for sleep apnea but now I realize I may have CUE because I was actually diagnosed while still in my contract (I didn’t get out until 2009 and was still in selective reserve until 2011)

Anyone have advice or pointers on this?

Thanks in advance
 

1. Did your VA Dr. fill out a Sleep Apnea DBQ?

2. Did your VA Dr. provide a nexus of opinion stating the minimum threshold of "at least as likely as not" the veteran's Sleep Apnea is due to or the direct result of military service (since your SMR has an in-service diagnosis.) that also states that it is "medically necessary" for you to use a CPAP machine.

In addition, a rationale must be presented with the Nexus.

You have two of three Caluza factors for direct service connection, according to what you have disclosed.

1. In-service diagnosis, injury, event

2. Current diagnosis of Sleep Apnea

3. No Nexus of Opinion. The Nexus of Opinion is the key to linking your Sleep Apnea to military Service.

The CUE is meant to be as a very last resort in a claim. Once you use it for your claim you can't use it again.  Re-open your Sleep Apnea claim with "new and material evidence" either a filled out DBQ or the nexus of opinion and if you get it granted(nothing is guaranteed with the VA).I recommend you save the CUE to appeal for the effective date to 2008 . That's 11 years ago (132 months). Since Sleep Apnea is rated 50% ($879.36).....132 x 879.36=$116,075 that you would be owed to you. [It'll be more if you have dependents.]

i) Focus on service-connecting Sleep Apnea #1.

ii) Then appeal the effective date to 2008 with your CUE #2.

The other path you may want to consider; that's a path of least resistance, is Secondary connection of Sleep Apnea to one of your SC conditions.

I'm going to guess that you are rated for PTSD or another mental health disorder? Sleep Apnea is well-known to be caused by Mental Health conditions via medications.

I'm not sure the CUE would apply with Secondary connection. So, you're better off Direct-Service connecting your Sleep Apnea.

Best wishes.

 

Edited February 12, 2019 by doc25