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
 

[Oceanbound]

Talking about Jeopardy which pertains to this 

IBM spent hundreds of millions to put a machine on that show and it was getting basic things wrong. For example it said that cats ate spaghetti instead of saying catfood. And the computer scientists in the crowd was in total disbelief but when it came to the more advance stuff they were saying yes like they just scored a hole in one/strike a perfect bowling game/etc.

Now can you answer questions without Google? Who was the person that sent the first "spam" message? 

Have you ever read those choose your own adventure books?

Yet everyone and their grandma insist that the moon is made of cheese and has a man on it? So you think everyone is screaming CUE, why? When they are not.

First question is HOW did you even know about the word CUE? When no one has ever even spoken the word to you.

I see that a few are screaming for it as if they did the book report without even reading or having the book that was assigned by the elementary school 4th grade teacher to the entire class. No other student in class is talking about CUE, which is the "nuclear option," or even have it in their vocabulary. So one or two insist on having done the book report without even having read the book?

Do you speak Latin? Do you own the Black's Law Dictionary 4th ed (1951)? Do you have a physical copy of 38 CFR and can cite it like if it was phone number? Do you sneak into law school classes for fun and can you answer who is smarter Carl Sagan or Kesha, trick question? If you answer yes to any of these than by all means file that cue.

 

[doc25]

4 minutes ago, Oceanbound said:

Talking about Jeopardy which pertains to this 

IBM spent hundreds of millions to put a machine on that show and it was getting basic things wrong. For example it said that cats ate spaghetti instead of saying catfood. And the computer scientists in the crowd was in total disbelief but when it came to the more advance stuff they were saying yes like they just scored a hole in one/strike a perfect bowling game/etc.

Now can you answer questions without Google? Who was the person that sent the first "spam" message? 

Have you ever read those choose your own adventure books?

Yet everyone and their grandma insist that the moon is made of cheese and has a man on it? So you think everyone is screaming CUE, why? When they are not.

First question is HOW did you even know about the word CUE? When no one has ever even spoken the word to you.

I see that a few are screaming for it as if they did the book report without even reading or having the book that was assigned by the elementary school 4th grade teacher to the entire class. No other student in class is talking about CUE, which is the "nuclear option," or even have it in their vocabulary. So one or two insist on having done the book report without even having read the book?

Do you speak Latin? Do you own the Black's Law Dictionary 4th ed (1951)? Do you have a physical copy of 38 CFR and can cite it like if it was phone number? Do you sneak into law school classes for fun and can you answer who is smarter Carl Sagan or Kesha, trick question? If you answer yes to any of these than by all means file that cue.

 

Cheese? That's news to me. Everyone knows the moon is made of spare ribs and I'd down it with a tall, cool Budweiser. Or is that just me? LOL.

I'm kidding Oceanbound. You bring up valid points.

[blahsaysme2u]

This is amazing! I didn’t think I would get such wonderful responses. Thank you all for your advice. I’m going to start from the top!

1. I have already filed the reopen; advice from VSO got me that far. but because I never appealed the original denial, was told the only way to get it backdated to 2008 would be to do the CUE. 

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 also under the impression that if you have a diagnosis or injury, regardless of nexus to service, it is considered service connected( like workers comp for injuries that happen at work but not necessarily because of the job) once again please help me see where this information is taken from. i appreciate everyone’s input, but without proof really its no better than me using google.    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 am still fighting for my PTSD and TBI claims. They have been "deferred" as of today.

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?

Once again thank you all for your help! I will be posting a more detailed post on my claims in the near future.

[blahsaysme2u]

11 hours ago, JKWilliamsSr said:

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.

exactly where I am at now. I have done this but was told I need to file CUE to get backdated to 2008. this really seems unfair. seems like they should automatically see "hey there was a diagnosis in 2008 when the veteran first filed a claim" very frustrating!

[broncovet]

Tell your VSO to read 38 cfr 3.156 c "new service records".  You should read it also.  I wish I had all the money from when VSO's advised me wrong.  I could post it here, but you need to learn how to look stuff up.  Google "38 cfr 3.156 c"

[JKWilliamsSr]

3 hours ago, blahsaysme2u said:

exactly where I am at now. I have done this but was told I need to file CUE to get backdated to 2008. this really seems unfair. seems like they should automatically see "hey there was a diagnosis in 2008 when the veteran first filed a claim" very frustrating!

They key here is what the reason for the denial was.   It should be spelled out in the statement of case.  Your case is somewhat similar to mine with the exception that the VA did a review after they received your records.  That did not happen for me.  In my denial it was stated (I am paraphrasing) that my service medical records do not show my claimed disabilities.   So......I finally get a copy of my service medical records and  the disability I am claiming is not only in there but diagnosed by a specialist.  Now I made the initial assumption that because the disabilities is in my medical records it is a CUE and theoretically it actually is BUT the easier path would be to have it reopened because I now have new and material evidence.  

Specifically in my case ( and  more than likely yours) the regulation to cite is 38 CFR 3.156 (c) (1) (I)  - The regulation states and I am going to paraphrase here -  that service medical records received any time after the VA renders a decision is new and material evidence.  It does not matter when the records were received by the VA.   This will allow the claim to be reopened.   Just as Broncovet stated it is best that you learn how to look things up and familiarize yourself with the regulations.   I have learned to never.....ever..... trust what a VSO tells me without verification.  I am not saying that VSO's are bad.   That is not the case because some of them are very, very good BUT the claim is still your responsibility and you need to make sure you know what is happening every step of the way.   I personally will not use a VSO.   In my instance if I am denied I will go with an attorney to handle my appeal to the BVA.