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
 

[blahsaysme2u]

so lil update on this:

i was ARNG and was only active duty for my tour in Iraq. since i was diagnosed after discharge of active duty, the diagnosis does not count as "in service". once again the Guard and VA screwed me over. it doesnt matter if i was diagnosed the day i raised my hand, if i wasnt on active orders, it doesnt count.

so my next step is trying to file CUE saying basically there was no way i could have gotten a sleep study done while in Iraq, and filed the claim and got diagnosed as soon as i got home(2 months after discharge from active duty orders). i posted this as a new thread to get some advice on the CUE, or to help if i even have a CUE case. i got help from the state VSO and he says that i do because i was diagnosed with 1 year of discharge from active duty. thanks for any help or thought on this. please read my other thread for more details:

 

[Berta]

" i posted this as a new thread to get some advice on the CUE, or to help if i even have a CUE case. i got help from the state VSO and he says that i do because i was diagnosed with 1 year of discharge from active duty. "

If your medical records show this as a continuous chronic condition, and that it was not only diagnosed within the first year after discharge, and was at least at 10 % disabling during the first year after discharge, by medical evidence, in VA's possession at time of the initial denial , then that would be a valid CUE.

 

But CUE rests on the wording of a past denial, and the evidence list they used.

I assume your VSO has a copy of that denial and could already determine that  it was a valid CUE,frm the way the denial was worded, and looking over the Evidence list.

We have plenty of info here in the CUE forum on what is a valid CUE claim.

[allansc2005]

@Berta, you gave me the best CUE advice a few years ago that helped win my case, and yes, it's all in the wording.

 

Allan 2-2-0 HUAH!

[allansc2005]

@blahsaysme2u, the key here is Buddy Statements.

 

Sleep apnea is one of the hardest conditions to service connect.

If you type in "buddy statements" here on the search bar, you will see good examples of buddy statements.

 

Also, don't leave out statements from relatives either, although they may or may not have been on active duty with you, they can provide valuable statements that could help win your case for sleep apnea.

 

Also remember, as with ANY VA claim, you have to provide a Nexus, something that connects in your case, sleep apnea to active duty.

 

Allan 2-2-0 HUAH!

 

 

[blahsaysme2u]

2 hours ago, Berta said:

" i posted this as a new thread to get some advice on the CUE, or to help if i even have a CUE case. i got help from the state VSO and he says that i do because i was diagnosed with 1 year of discharge from active duty. "

If your medical records show this as a continuous chronic condition, and that it was not only diagnosed within the first year after discharge, and was at least at 10 % disabling during the first year after discharge, by medical evidence, in VA's possession at time of the initial denial , then that would be a valid CUE.

 

But CUE rests on the wording of a past denial, and the evidence list they used.

I assume your VSO has a copy of that denial and could already determine that  it was a valid CUE,frm the way the denial was worded, and looking over the Evidence list.

We have plenty of info here in the CUE forum on what is a valid CUE claim.

thanks for your input. anyone who has read any posts here know you are the A1 person to get a comment from with the top notch advice. so i am very thankful for your quick response. 

yes my VSO read over how they denied my claim. its really kind generic "not evidence of sleep apnea while on active duty". i guess my main  concern was the idea of presumed disease. i have been using a cpap machine since i was diagnosed, so i believe i am eligible for the 50% rating.  again, the VA diagnosed me 4 months after i got back from IRAQ( as a ARNG this was considered not in service because it was after my active duty time).

thanks again for all your help. he consulted a lawyer(the state has a team of lawyers to help with claims). but sounds like from your response that it is indeed legitimate  SC claim if it was diagnosed within a year of discharge from active duty? i was also denied a claim for my sinus that i was diagnosed with chronic rhinitis(allergies). i was diagnosed in the at the same time for this. would this also be a CUE?

thanks again for your input

 

[blahsaysme2u]

wanted to update on this. i havent gotten my letter in the mail yet but i my CUE was denied for OSA. the state vso is baffled and wants to do a board review where i go before a judge. i am so disheartened by this. its like the VA doesnt even follow their own rules just to aggravate us. i know this is normal and par for the course and most of you here have been fighting years, just venting. 

I WONT GIVE UP!

Edited January 21, 2020 by blahsaysme2u
misquote and edit for clarification