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]

1 hour ago, Berta said:

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.

 

 

 

 

 

 

 

 

 

 

i am going to forward this information to my VSO and see what he thinks. this is such good information!

thanks again for everything @Berta

[blahsaysme2u]

3 hours ago, shrekthetank1 said:

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

thanks for the encouragement my friend! you guys are so great at keeping my head up and giving me hope and direction! this cite is LITERALLY life saving!

[Buck52]

blahsaysme2u

When you win,  please come back to this site and let us know,  and if any of the information you recieved here that basically won your claim  please feel free to comment on it..*.in the success forum*  here on hadit

Thank you for coming to hadit and come anytime.

[blahsaysme2u]

Thanks to you too @Buck52!! and you know i will keep you updated. i hope this thread helps others that are searching the forum for info on this. 

[blahsaysme2u]

OK SO AN UPDATE:

I had my trial with the BVA. It went surprisingly very well. And very quick. Only 15 min in total from calling in to hanging up.

For those that haven’t been following, I filed for OSA after leaving the service (I was national guard and was in Iraq) in 2008. I had OSA symptoms that started while in Iraq. I reported these and was told by platoon sgt that if its not life threatening I didn’t need to go to sick call. The doctors that did my exit exam advised me these symptoms sounded like OSA and wanted me to get tested for it when I got back to my local VA. I did this immediately and was DX 3 months after getting home from Iraq.

I filed a claim-DENIED. I was young and gave up thinking I didn’t know what I was doing or how to go about getting benefits.

Fast forward to meeting my wife- she pushed me to go after my benefits. I got buddy statements and resubmitted my claim for OSA. DENIED. So I filed for appeal to VBA.

Ok you are caught up. The TRIAL:

Basically, my lawyer (provided by my VSO, Virginia Department of Veteran Services) asked me what my symptoms were in Iraq, who I told, who heard them, and pointed to buddy statements in the record. This was about 8 min of testimony on my part. Afterwards, the judge said “thank you Mr. X- you answered the questions we needed as to the symptoms you had while in service and I don’t have any follow up questions. You have cleared this matter up to your service connection.” I did ask the judge “I have buddy statements that said all this already, why did it take me having to come to the VBA to get this resolved.” She said she didn’t know why the VARO didn’t acknowledge those buddy statements, but she is definitely going to mention that they missed them in her decision. SOUNDS PROMISING, EH?

And that was it. So now I sit and wait. I am concerned for a few things. EED being the biggest. I was recently told by the lawyer at the VSO that because I didn’t keep appealing the original denied claim from 2008(because I stopped trying), my EED could and probably will be set for this latest claim that started just a few years ago. Then I will need to appeal the EED and start this fight all over again. Anyone have intel on this?

I just want to be done with this, but if I win this SC, I will officially be in the 100 club.

UPDATES WILL CONTINUE AS THEY COME>>>>STAY POSTED

[blahsaysme2u]

UPDATE!!!!

No estimated time frame but WOAH! this is moving quick.