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]

3 hours ago, Berta said:

but I do believe, since this is not a presumptive disability, that you will need a strong IMO/IME, that can associate your SA diagnosis with your service, and that can rule out any other etiology or cause for it. 

An IMO/IME doctor will need to see your SMRs because there could be something in them that indicated SA, that you or the VA overlooked.

i am confused because when i first strating posting here, you were one of the first ones to tell me that because i was diagnosed within a year that this was for sure a CUE.

(see my other thread i had started on CUE)

 

also, why would my VSO and the lawyers say that as well? i really cant afford an IMO and my VA OSA dr refuses to fill out DBQ or NEXUS letter etc. i dont know what to do now

[GBArmy]

blahsaysme2u I am not saying you have a cue or not; there are plenty of veterans here that can advise on that. I also get that you can't afford paying for a IMO. There are lawyers who can do the work and even pay for the IMO if you negotiate that as part of your deal. You have to check that course of action out. If the lawyers don't win your claim for you, they don't get paid. So of course they are only going for it if it looks pretty good. Of course they get a bigger percentage of the award (backpay) because they are financing the deal. It would be a good thing; you get an additional disability, with more monthly $, and the lawyer gets his payday.Of course, if you can't get a lawyer tod step up, maybe your case isn't a sure thing. IMO.

[Berta]

You stated:

"i am confused because when i first strating posting here, you were one of the first ones to tell me that because i was diagnosed within a year that this was for sure a CUE."

 

That is incorrect as to what I posted. This is what I posted:

Posted December 15, 2019

You asked:

" i posted this as a new thread to get some advice on the CUE, or to help if i even have a CUE case. i got help from the state VSO and he says that i do because i was diagnosed with 1 year of discharge from active duty. "

I answered:

"If your medical records show this as a continuous chronic condition, and that it was not only diagnosed within the first year after discharge, and was at least at 10 % disabling during the first year after discharge, by medical evidence, in VA's possession at time of the initial denial , then that would be a valid CUE.

 

But CUE rests on the wording of a past denial, and the evidence list they used.

I assume your VSO has a copy of that denial and could already determine that  it was a valid CUE,from the way the denial was worded, and looking over the Evidence list.

We have plenty of info here in the CUE forum on what is a valid CUE claim."

to add.....

I have never seen the Evidence list here or maybe even not the actual  denial.

I assume the VSO has far more info than we have here.

[Berta]

It seems your sleep apnea claim was denied three times.

We have no idea what denial the VSO felt had held a  valid CUE.

I assume you have your SMRs.

Did the VSO explain to you the 10% part of the regulations?

Maybe this BVA case will help you understand this:

"There are no other medical findings or medical statements tending to show that the diagnosed sleep apnea is the result of active service or was manifest to a compensable degree within the year after the Veteran’s discharge from active service."

https://www.va.gov/vetapp19/files6/19149781.txt

The veteran had failed to prove the SA was at a compensatable level  ( the 10% I mentioned above) and also the BVA found no nexus in his SMRs.

 

 

[blahsaysme2u]

25 minutes ago, Berta said:

It seems your sleep apnea claim was denied three times.

We have no idea what denial the VSO felt had held a  valid CUE.

I assume you have your SMRs.

YES. it was denied in 2008 when i first filed. then again last year and then again as CUE. my VSO felt it was CUE for the same reasons i thought you did when you stated that:

Quote

"If your medical records show this as a continuous chronic condition, and that it was not only diagnosed within the first year after discharge, and was at least at 10 % disabling during the first year after discharge, by medical evidence, in VA's possession at time of the initial denial , then that would be a valid CUE."

i was diagnosed within 1 year of discharge, i was given Cpap(which shows continuous chronit condition) and because i am using a CPAP arent the regulations a 50% rating? isnt that greater than 10% ? i just dont understand?

 

28 minutes ago, Berta said:

There are no other medical findings or medical statements tending to show that the diagnosed sleep apnea is the result of active service or was manifest to a compensable degree within the year after the Veteran’s discharge from active service."

https://www.va.gov/vetapp19/files6/19149781.txt

The veteran had failed to prove the SA was at a compensatable level  ( the 10% I mentioned above) and also the BVA found no nexus in his SMRs.

isnt using a CPAP proof of 10% since its a 50% rating?

[blahsaysme2u]

JUST A NOTE  ON THE LINK PROVIDED(see quote below)

this person was diagnosed years after service, and had many other contributing factors to his OSA. I was a fit young ARMY infantry soldier fresh home from my tour in Iraq. i had been working out at least 2x a day on my days off from missions and eating well balanced meals. i was not overweight, or had high blood pressure etc. i filed my claim for OSA 1 day after discharge from active duty service and was diagnosed 3 months later. please someone explain to me how i developed OSA in 3 months of being discharged, and how i knew i would develop it with enough hindsight to file a claim for it. 

i am just so frustrated- i feel like i have no solid answers or clear guidance.  i just want to give up 

Quote

The June 2016 examiner opined that the Veteran’s 
sleep apnea was less likely than not incurred in or 
caused by in-service injury, event, or illness. 
The examiner reasoned that the Veteran was not diagnosed 
with sleep apnea until 2016 and that the Veteran instead 
had presence of significant risk factors of sleep apnea, 
to include obesity, hypertension, advancing age, and being a male.  

The fact that there were no records of any complaints or
 treatment involving the claimed sleep apnea for many 
years after service, weighs against the claim. 
See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom.,
 Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 
In addition, as noted above, the Veteran does not argue that
 sleep apnea was treated, suspected or diagnosed during active 
service or within the one-year presumptive period after discharge. 
Instead, the Veteran reported during the June 2016 sleep apnea 
DBQ that his symptoms did appeared only five or six years prior 
to the examination, which was approximately two decades after service.