Sleep Apnea

[blahsaysme2u]

i havent posted in a while. i was denied my claim for sleep apnea and got help from the state VSO because i couldnt get the vfw or DAV to return my phone calls. 

i in the army national guard. i was in 03-09 and was deployed to Iraq in 07-08. upon return i immediately went to the va and filed for benefits for health care. i was injured in iraq and filed claims for those. i also was having problems sleeping and the VA gave me a sleep study(4 months after discharge from active duty) and was diagnosed with sleep apnea. i filed a claim and it was denied. 

years have gone by since then and i was trying to get a claim for my sleep apnea once more. last year i submitted a claim(thinking the claim i submitted in 2008 cant be appeal etc.) i was denied a couple months ago again saying that my diagnosis was not "in service". now while i understand i was not active duty at the time of diagnosis, it was only 4 months after. also, where in Iraq would i have been able to get a sleep study done? 

i have been trying and trying to get help with this claim and doing research on my own. i was not getting anywhere. soooooo i went to the VSO. he immediately says "this is a CUE". he says that since the diagnosis was less than a year from discharge from active duty, i should have been granted service connection. so i am confused on this because its not listed by the VA as a presumed disease. is this CUE going to fail? if not, i was also denied service connection for my allergies that i was diagnosed with around the same time. should i file a CUE for that as well? 

 

[Berta]

The ad might be from my PC because of Office 365.

I see others have downloaded the pdfs.I guess it is just my system.

[blahsaysme2u]

could i email them to you think?

[Berta]

I managed to read the CUE. It did not refer to any evidence enclosed.

It did not cite the regulation you allege that they broke.

It did not follow the many CUE templates we have here at hadit.

 

Others have apparently downloaded it as well as me- it took some time-I am recovering from the flu and I had some programs automatically upgraded so it might be something on this end and I have not been able to get to yet.

The denial- this was filed as a Gulf War claim, for a qualifying chronic disability,but as the VA stated correctly, this is not a chronic qualifying disability under the Persian Gulf War Regulations. as it was a diagnosed condition.

Then since it was a diagnosed condition ( 'undiagnosed conditions' pare part of the Persian Gulf War regulation criteria) the VA then correctly considered it as a diagnosed condition, but stated they have no evidence of the 

10% criteria I mentioned in above posts.....

They had no evidence that it met the 10% or higher criteria, as it appears they did not have evidence that you need to use  a C PAP machine and I saw no evidence that any  doctor had determined how disabling the sleep apnea is. They did acknowledge a sleep study had been done ,and you did have the diagnosis but I saw no evidence that they had the results of that study to indicate you needed a C pap machine, or any other other treatment type, that could warrant the 10% criteria.

If you were not present at the exam that garnered the DBQ you have to question the VA on that.It does say you need a C PAP but there is no nexus statement there or anything else that could help.

I wonder how your VSO will be handling this after the denial.

It was filed incorrectly as a Gulf War claim, the VA explains that, and the CUE had no legal citations or established medical evidence sent with it.

Others will chime in. I regret that I agree with the VA's decision.

 

 

 

 

 

 

 

 

Edited February 14, 2020 by Berta

[blahsaysme2u]

How was it claimed as a gulf war claim? 

never mind. i just looked at how the VSO wrote the claim. i dont know why he put Gulf war on there. but technically i am a gulf war vet. i dont know why this would make a difference. 

so how do i fix this? move forward with the appeal? VSO wants to file appeal with judge. i submitted his argument on here. he again mentions the gulf war. i guess i should ask him to remove this wording just in case. im really frustrated that that small wording is what is throwing a kink is this!

Edited February 14, 2020 by blahsaysme2u

[Berta]

The "kink" is more than the Gulf War reference.

OSA is not a chronic presumptive under the citations of 38 CFR 3.307and 38 CFR 3.309 that the VSO used on the 21-4138 form above.

You need to establish a direct link to your service.

Your SMRs and/or 201 file might hold the key to that- and VA sure isnt going to read over your SMRs carefully.

Buddys can be found these days a lot easier then in the past. I have an article here ,under a search, on what buddy statements need to contain , and statements from significant others would help too, to prove you snored during your service.Of course a buddy would have had to be in the same unit, same time and place as you were and in same sleep quarters.

And unfortunately I still feel you will need an IMO/IME because that will be, in my opinion, the first time anyone will  ever really read  your SMRs and medical records thoroughly.

An IMO /IME doctor's opinion ( they need to follow the IMO/IME criteria here at hadit) will also be able to help determine what the OSA proper rating should be, if their opinion awards the claim.

Did the VA actually give you current appeal rights? I ask because this was the third denial for the same claim.

Maybe your SMRs and personnel files will not reveal any nexus that could help you-that is the chance every vet takes when they need a nexus from a IMO/IME doctor.

But the truth is that many claimants would have never received their proper comp without IMO/IMEs.

 

 

 

 

[blahsaysme2u]

there is nothing in my SMR bc i was in Iraq. i have one buddy statement from iraq. that was used in my reopened claim last year that was denied(2nd denail). 

after all this i am still confused because multiple times by mutiple people now here and from the VSO and the lawyers at the state VSO office have said "you were dianosed within 1 year so that is your service connection" and now you are saying that doesnt matterand i need a IMO/IME? Why would a CUE have been vailid before if i needed another form of nexus other than the DX within 1 year to discharge? i feel like i am going in circles and this claim is completly messed up now and ive waisted so much time and energy on it. i dont have any other resources. i have tried to contact other buddys i served with and got no where. i dont have money for a IMO or IME. 

12 minutes ago, Berta said:

Did the VA actually give you current appeal rights? I ask because this was the third denial for the same claim.

Maybe your SMRs and personnel files will not reveal any nexus that could help you-that is the chance every vet takes when they need a nexus from a IMO/IME doctor.

But the truth is that many claimants would have never received their proper comp without IMO/IMEs.

i dont know what you mean by my appeal rights? i guess they sent me some papers but i dont understand them really. also again there is nothing in my SMR. the only thing i have is the Sleep study done and then i have been using cpap ever since 2008. there was nothing before that because i was in Iraq.