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]

11 minutes ago, JKWilliamsSr said:

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).

so what should I do with that? I can't force her. and even if I did, would probably not be to my benefit. anyone forced to do anything always puts in the least amount of effort required.

[JKWilliamsSr]

Just now, blahsaysme2u said:

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?

 

You should received a letter for the denials even if you have deferrals

[JKWilliamsSr]

Just now, blahsaysme2u said:

so what should I do with that? I can't force her. and even if I did, would probably not be to my benefit. anyone forced to do anything always puts in the least amount of effort required.

That information can be used in an appeal for failure to assist.  If the VA doctor will not do a DBQ they are still required to assist you in filing your claim which IMO would be a sleep study.  It is already in your SMR's so all you need is a current diagnosis.

[blahsaysme2u]

my denials are from 2008. i threw those away a long time ago. 

i have not received my letters for the "deferred" claims yet. here's a screenshot from ebenfits

 

Edited February 13, 2019 by blahsaysme2u

[blahsaysme2u]

4 minutes ago, JKWilliamsSr said:

That information can be used in an appeal for failure to assist.  If the VA doctor will not do a DBQ they are still required to assist you in filing your claim which IMO would be a sleep study.  It is already in your SMR's so all you need is a current diagnosis.

well I see her 1x a year and she updates my records with my cpap report ect. so I think I am good with the current dx right? or should I have a new sleep study done?

[JKWilliamsSr]

They have not yet denied you on Sleep Apnea.  I am baffled as to why it is deferred if it is in your SMR's.  Has this been deferred since 2008? or is it part of your new claims?