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? 

 

[Carl the Engineer]

7 hours ago, blahsaysme2u said:

just a follow up after i scanned all my denials i noticed something in the evidence listed for my denial from last year of sleep apnea. it says a DBQ was done in March of 2019. i never saw this so i looked it up on BLUE BUTTON. it says it was "in person examination". i do not remember ever being seen in person for this exam by the VA or having them fill out a DBQ for me!! in fact i have been trying to get my OSA dr to do this for me for years and she refuses.

here is a copy of the DBQ the VA did in March of 2019 without my knowledge. is this allowed? they lied and said they examined me in person. is there anything i can do about this?

sleep DBQ.pdf 93.14 kB · 8 downloads

You are saying you were not at the VA in Salem in March 2019.  The exam says in person exam YES.  

Are  you positive you were not there????

NASA, we got a problem,

Hamslice

 

[awgv001]

1 hour ago, blahsaysme2u said:

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. 

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.

I'll take a crack at this ~~~

So, I had to rely on buddy statements a LOT myself due to similar issues of toughing it out and not seeing Doc when I should have. I have had claims struck down for the same or similar reasons during re-open, and one DRO review still denied and im sitting in appeals (NOD my claim up to BVA before one year)

What does your letter state in regard to presumption??? You mention the one-year thing, so I assume that's what you mean about your diagnosis and such.

CUE is not valid until a claim is finalized (denied by VARO, and/or BVA when appealing higher up to the CVAC)

When Berta said you needed a direct link, yes, this meant a Nexus. I have a general Nexus form that can be used for this I have found to be extremely helpful.

 

[blahsaysme2u]

3 hours ago, Hamslice said:

You are saying you were not at the VA in Salem in March 2019.  The exam says in person exam YES.  

Are  you positive you were not there????

i am pretty positive i never saw this dr. i saw a dr for audio that day. but i dont think i saw anyone else. there are other DBQ for that same date. my memory is pretty bad but my wife doesnt remember seeing anyone about my OSA ever. i dont know how i can prove it.

[blahsaysme2u]

@awgv001 thanks for responding man. i really appreciate it. i did post all docs here in this thread. it would be much easier if you looked them over then me trying to explain it all again. 

but to state again:

i was national guard so i dont have any "active duty service records" other than my time in Iraq. during that time i never went to the doc for sleep problems. i waited till i got home. as soon as i was discharged i submited a claim(2008) and was denied. i reopened it last year with lay statments from buddy saying i had OSA symptoms while in Iraq and was denied again. My VSO submited CUE claim for being DX within year(3 months after discharge) discharge  and was denied again. My VSO and the lawayer at the state office says they dont understand and want to appeal and go before judge now. i posted what he wrote for the arguement.  i have posted all my denials and the CUE write up and the appeal write up for you guys to look at. 

i just dont know if this is winnable now. it seems that the VA is set to say that my OSA magically developed in 3months after i left Iraq. its discgusting to me that the Doc in my DBQ said that my OSA was not in service. i cant afford 10k for dr bash or 2k for dr anaise....i thought about going to local dr but worried they wont write me a nexus letter IMO. im so stressed out over this! and i feel like im going in circles. 

[Berta]

You stated:

" My VSO and the lawayer at the state office says they dont understand and want to appeal and go before judge now."

That is probably the best thing to do,- to have them prepare and file  the appeal.

[broncovet]

I agree with Berta, I think this is very winnable, but it all depends on your persistence and willingness to do what it takes.  Start out by appealing, this could just be granted at the BVA.  Dont worry about an "in service" diagnosis, this isnt one of the Caluza elements.  But you do need an in service "event".  

As to whether this is national guard or not it should not matter as long as you meet the requisite "time" requirements.   If that was an issue, it should have came up before now.