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
 

[Berta]

These guys are Right!

You will be using this regulation,  as to (c)

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

This is how it works:

https://www.va.gov/vetapp18/files7/18122525.txt

[blahsaysme2u]

ok, I get all of that guys. I think it's being lost somewhere- I have already re-opened the claim. 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? 

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?

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?

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?

[blahsaysme2u]

• (2)Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claimbecause the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.
• (3) 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.
• (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

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?

[Berta]

I just posted a Beauty in the CUE forum- that started out as a potential 3.156 but BVA called CUE on them-

I think most of my knowledge , on CUE and 3.156 came from reading BVA decisions over the years , as well as from the VBM by NVLSP.

BVA shows how they deny or award under these theories, and both types of decision reveal exceptional  information, as to how they made the decision.

[JKWilliamsSr]

1 hour ago, blahsaysme2u said:

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?

What Dr is this? Is it a VA doctor or a civilian doctor from your own insurance?

Unless I am mistaken a DBQ is not required.  I have not seen anything that states that your doctor has to fill one out and I am pretty sure it can't be forced.......But.....you will need something to show service connection and if the doctor will not fill out a DBQ will they write a letter? Maybe have them put a note in your records that your sleep apnea is more than likely caused by X disability and submit the records?

Edited February 13, 2019 by JKWilliamsSr

[blahsaysme2u]

it is a VA doc. she said she will not fill one out and will not say anything regarding the cause of my sleep apnea. 

see this is where i am so confused. i was under the impression that if you have a diagnosis or injury while in service, it is considered service connected regardless of cause(service or otherwise). why do i 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??

Edited February 13, 2019 by blahsaysme2u
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