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
 

[Vync]

I'm glad you are not giving up on this. When the letter arrives, I know you will read it very carefully, compare it to medical records, rating schedule, and laws in effect at the time.

It's not unusual for the VA to deny allergic rhinitis. Mine was SC based on aggravation. Yes, I had it before going in, but a few months after I went on active duty, It flared up and simply never went away. I won SC for it due to aggravation as an allergic rhinitis (AR)/sinusitis combo rating. The rating criteria for it is really cut and dry. It is based on 50% or total sinus obstructions and/or presence of polyps. I had polyps and got the maximum rating of 30% for AR, then the VA reduced it. For aggravations, they determine the pre-service percentage (in terms of the rating schedule) and deduct it from the awarded percentage. The medical nexus stated I always had it, but it did worsen on active duty. The VARO improperly used that to deem a 10% pre-service level of disability, instead of following the regs, so I have a CUE in the hopper. Perhaps aggravation might be an avenue to explore. Worst case you could get it SC and then go back and request an EED.

[blahsaysme2u]

CLARIFICATION:

My CUE was for my sleep apnea. i misquoted above for sinuses.

i have not filed for sinuses yet as the VSO doesnt think i would win that even though i was diagnosed and have medical records i found. as you said its hard one to fight and win.

ill post my letter soon as i get it in the mail and get your all view. they didnt even mention my diagnosis within year of discharge(which is what we filed the CUE for) hence why my VSO is so frustrated and confused. they talked about it not being a Gulf War disease or something. sorry i cant remember the exact wording, but in general just ignored why we were filing for CUE.

 

[Vync]

For your sinuses, it might be worth it to comb through your medical records (military or otherwise). Maybe get your doctor to fill out a DBQ and write an IMO. For allergic rhinitis, the current criteria is very simple. Mine was confirmed with an x-ray and CT scan.

6522   Allergic or vasomotor rhinitis:
With polyps	30
Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side	10

 

For the diagnosis within a year of discharge, did they have those records initially? There are different rules for STRs vs. private records. If you had new STRs that they didn't have, then the claim can be reopened under N&M evidence. If the records were from the VA, they are considered to be in "constructive receipt" of the records, even if they were not physically before the rater. If they were from a non-VA doc, and the VA did not have them when they made the decision, then they will discount them as inapplicable. It gets a bit tricky.

[blahsaysme2u]

they are in service records from my out processing...i just happened to find my personal copy. they say they "lost" my service records and dont really have anything from when i was in(good ole national guard losing everything).

but i am sure there are more records to be found but until i get my C-file i am just playing the waiting game to figure it out. but this is great info i will definitely refer back to once i have everything in hand.

1 hour ago, Vync said:

If they were from a non-VA doc, and the VA did not have them when they made the decision, then they will discount them as inapplicable.

non-VA doc meaning private doctor, not military docs right?  its a "statement of Medical Examination and Duty Status" form stating i have sinusitis. its dated 4/24/2008. i was discharged from active duty 5/23/2008.

[vetquest]

Military vs non military might be a catch.  If you were in the national guard and there were no military doctors available they sometimes send you to a civilian doctor.  If that was the case these might be looked at as military records.

[blahsaysme2u]

this was not civilian doc. it was done while demobing with mil doc and the the document is DA form. so maybe?