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? 

 

[blahsaysme2u]

attached are the statements i used when i reopened my claim last year. i again have reached out to some guys i deployed with but have not had much luck on getting any help. one guy is in jail. other guy keeps telling me he is going to print it off at home and sign it and send it to me....3 others ghosting me.

i have made an appointment with local sleep doc on March 10th. problem is i dont have access to my C-file still. i need to find a way to get copy of the sleep study as it is not showing in my healthyvet, only the diagnosis and results. but nothing from when i came, vitals taken, readings etc that the sleep doc wants to see(he wants to read the actual report not what the VA reports are the results if that makes sense). he also said i dont need another sleep study done because my CPAP keeps a very detailed record of my sleep habits that can be downloaded for his review. 

 

[ShrekTheTank]

It sounds like you are doing all the right things to get this SC.  Keep on fighting and you will win.  You will probably need to take it to the BVA to win, but you are on the right track!  

My advice keep going with what you are doing and keep fighting!  

[Berta]

The brief 21-4138 should be bolstered by the veteran stating he was in your unit, same time, same place, and I suggest Buddy's to give VA their contact info, because sometimes the VA will contact them .

The second Buddy statement is excellent, but then again, I feel the buddy contact info is missing.

A 21-4138 holds an oath that buddies can sign, but if it is not written on a 21-4138, the thy ned to state that they attest that their info in accurate and true to the best of their knowledge, and also they should get their signature notarized.

If the VA ignored the brief statement above, I can understand that but if they ignored the second statement, that is a CUE under 38 CFR. 4.6 unless they gave a reason for not considering it.

I don't advise using the 21-4138 for buddy statements....only because the VA could easily overlook it,if other 21-4138s were sent by the claimant.

 

 

 

[Berta]

To add- their decision you posted refers to one 21-4138-

I believe it is the statement our VSO made, mentioning the buddy statement-but I dont know which 21-4138 buddy statement he means.

There is nothing on the Evidence list to reveal they even read the buddy statement.

I hope you rep considers that as a 4.6 violation and could help change the tide for you-sooner than later.

I feel your  rep should ask for a Higher Level review with a CUE.

I have an article her at hadit searchable under the Power of 38 4.6.

Most of the CUEs I won were due to VA's violation of it.

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6"

The detailed  buddy statement you have is an "element" that affects the "probative value" of your evidence. If the VA did not consider it at all, but you have proof they had it prior to the decision you posted,  they have committed a CUE.

 

 

 

 

 

 

 

 

 

 

[blahsaysme2u]

1 hour ago, Berta said:

A 21-4138 holds an oath that buddies can sign, but if it is not written on a 21-4138, the thy ned to state that they attest that their info in accurate and true to the best of their knowledge, and also they should get their signature notarized.

they did on the second page. i just didnt post that page since it was just that and their signature. thanks for double making sure i had it right. and for others might be reading this might not know to have their buddys do this. i used this link to have my buddy's make their statements with their template:

https://vaclaimsinsider.com/how-to-write-a-va-buddy-letter/

https://cck-law.com/blog/how-to-use-lay-evidence-for-va-disability-claims/

[blahsaysme2u]

1 hour ago, Berta said:

If the VA ignored the brief statement above, I can understand that but if they ignored the second statement, that is a CUE under 38 CFR. 4.6 unless they gave a reason for not considering it.

again, this is what we used to reopen the claim. it was denied. then we opened CUE. but maybe we didnt CUE for the right reason? i dont know but now looks like our best bet is to move forward with VBA and talk to judge?