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]

this is a quote from a popular VA claim lawyers website on sleep apnea. is this not accurate?

 

VA Disability for Sleep Apnea through Direct Service Connection
One of the most straightforward ways to achieve service connection of a particular disease or disability is to show that you had that disease or disability while in service.  So, if you developed sleep apnea while in service and still carry that diagnosis, you should be granted service connection.

[JKWilliamsSr]

If you have a diagnosis of Sleep Apnea in your Service Military Records you do not need to have a DBQ filled out.  It should automatically be service connected.

Do you require the use of a CPAP machine?

Edited February 13, 2019 by JKWilliamsSr

[blahsaysme2u]

yes sir. and i use it religiously. saved my life 

[JKWilliamsSr]

7 minutes ago, blahsaysme2u said:

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??

This is a clear violation of the VA's required duty to assist.

Case Law:

Once the veteran’s initial burden of submitting a facially valid claim is met, the VA is obligated to assist claimant in developing facts pertinent to claim and when all the evidence is assembled, the VA is then responsible for determining whether evidence supports the claim or is in relative equipoise with the veteran prevailing in either event or whether fair preponderance of evidence is against the claim in which case a claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

[blahsaysme2u]

btw- how do i get copy of my denial letters? 

i have not gotten my C-file yet. what is the process in getting my hands on that? should i wait till all these "deferred" claims process before requesting my C-file?

 

[JKWilliamsSr]

10 minutes ago, blahsaysme2u said:

yes sir. and i use it religiously. saved my life 

I have sleep apnea myself and I know exactly what you mean.  I am not service connected yet....taking a step by step approach on that.  I have to link it to other disabilities and that is a process for me.

1.  I am rated for Bronchitis but now have Asthma - will request an increase on that

2. Also have weight issues which is directly related to my knee, ankle, feet issues which prevent me from working out.   Currently on working on getting the feet service connected and once that is done I can tie in the weight issue as well.   I did not develop sleep apnea until after I was diagnosed with Asthma and gained the weight.