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By Willy P
Good Afternoon Team,
Short back story/timeline:
Left Active Duty: August 2015 Diagnosed with Sleep Apnea February 2016 (6 months later) Submitted claim in May 2016 with my evidence: Sleep study DBQ In service complaint of snoring exerpt from my medical record Favorable C&P Exam opinion (at least as likely as not...) VA Denied my claim in August 2016 I did nothing because I didn't think I could come up with any other evidence Fast forward to last year.....
I scratched some pennies together and paid for an IMO, then submitted the letter via a supplemental claim. I was awarded SC for sleep apnea at 50% within a month of the VA receiving my claim. Success! Here is the link to that process in the research forum:
So here is my line of thought...
Can I use HLR to fight for an earlier effective date, or do I have to use CUE? I mean, the VA had everything it needed to make the proper rating the first time (In-service event, nexus from the C&P doc, current diagnosis...). I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor. Why would the rater place his/her opinion over the VA's own doctor? Shouldn't the benefit of the doubt have gone to me? From what I understand, I can't CUE the benefit of the doubt anyway.
Since I am within the appeals period of the supplemental claim, I'm thinking the easiest path may be to request HLR in order to ask them to CUE themselves on the 2016 decision. Is that possible? I'm just trying to avoid CUE if I can, since it's mainly a "last resort" type of measure.
I read on one website concerning Sleep Apnea that in accordance with VA Adjudication Manual M21-1, Part III, subpart iv, chapter 4, Section D updated April 18, 2016; There is no longer the requirement to have been diagnosed with SA prior to leaving the military to receive a rating.
First, I looked at the cited manual and Section D, does not pertain to Respiratory issues, Section F does. So I'm just looking for clarification.
I was all set to use the 21-0958 for for my NOD when I happened to notice the decision I am disagreeing with said to use 21-0995. I looked up 21-0995 and it said it's the "new and improved" faster response form. If there is such a thing as a "faster response" form, I'd like to use it. The 20-0995 makes it sound as if it can be used for both CUE and NOD. I need to submit multiple of both and I don't want to screw it up. Have any of you use this form? thanks
So, as some know I have been having a little war with the VA and my VSO, the American Legion, about getting my DBQ's.
So today I went to the VSO's office in the VARO building during their "walk in" hours since I could not get them to give me an appointment.
On the door was as sign saying the office was closed for the week for training and left the 800 number for Washington DC office.
I knock on the door anyway. Two ladies answer.
Tell them what I want and that I need them to do it today.
They invite me into the office.
I hand them a typed sheet with the Dates and Dr's of my C&P's and a list of documents for each one that I need.
The first lady says she doesn't know why I am there. The second lady says she will help me. The first lady says show me how we do this.
I tell them again what I want and the 2nd lady says why do you want to file a NOD, I tell her. She says you don't need these files to file an appeal.......The VA already has them. I tell her I need to know exactly what the DBQ says and what the letters to and from VA says. I also need the code sheets as they existed at each point for each approved and denied C&P.
She tells me no i don't and if I insist on filing a NOD I should just file an HLR.. I told her no, that would not work for this and the HLR results are not typically veteran friendly.
She then spends 20 minutes more telling me that I need to listen to her because veterans don't know what they want and don't know anything about the VA and how to win their claim.
She then says "We work for the VA not for you, and the VA knows what it is doing".
this of course makes me mad and I say to her " I am asking you to get me these files. nothing more. I have heard your opinion and all you need to do is get me copies of these files." She then starts in again trying to convince me not to file.
I get more insistent and tell her that i heard her but I expect her to do exactly as I requested, nothing more.
She then says "Well you don't need those files so let me file the NOD" I tell her NO. Resoundingly empathically NO>
She then tells me I know how to file a NOD. She then remembers I am filing a CUE and says "you shouldn't file a CUE because you will never win and then the VA will be mad at you"......
Just f'ing wow.
Then I tell her once again to do what I asked her to do and to stop trying to dissuade me from what I want. I tell her she is wasting her time and mine and that all I want is her to get those documents.
She then yells to the other woman to get "Bill". Man comes in and says "those are VA files you don't get to have them".
I tell him he is wrong and ask who he is. He refuses to answer. I look at woman 2 and say Please tell me your full name so I have a record. She wants to know why. I tell her point blank, that the next time I speak to AL in DC I am going to reference her and what she has said and not done. I then look at "Bill" and ask his name. He tells me 'you don't need to know that". I tell him I do because saying "Bill from AL means nothing to anyone". He snaps back 'I don't work for AL I work for VFW".
I ask him why he is sticking his nose into an AL situation? He gets mad and leaves.
She writes down her name, at least I think it is her name, date and time .
Then says all she is going to do is fill out a FOIA. At this point I decide to let her do that and get a copy to submit with my complaint to the AL.
She then asks me what I want. Types that I want my C-file and the files on the attached sheet, prints it, shoves it at me and says to Sign it. I tell her no it is not accurate and ask for a pen and write explicitly what I want.
She literally tries to argue with me.
I tell her to stop arguing and write the FOIA the way I tell her.
She writes it wrong in her own phrasing and i made her redo it.
Then I made her add Time is of the essence on the form.
When she handed it to me. I initialed before and after the typing and drew a line threw the blank space.
She gasped and asked why I did that. I said "its blank space and anyone could add words to that blank space. She then started to say, and got half way through saying
'I needed to put more stuff...." and then shut up as she realized she was admitting to falsifying a FOIA over my signature.
I am not sure which is worse, having the people with my POA try and screw me over or having the VA which is supposed to be on my side try and Screw me over.
Curious what to do with this piece of information.
I was going through my c&p's and the one I had in Aug 2018 that bumped me to 100% has this line in it.
"He reports breathing difficulties, diagnosed - Obstructive Sleep Apnea. "
I was using my CPAP when my original C&P in 2013 was done. My record has all sorts of references to it, including the VA issuing me on and way. I have the Sleep Study results in my hands.
So what paths are open to me? in the 2013 standards being issued a CPAP w/ an SC (PTSD) related condition should have given me a 50% rating. Today's standards say I need the medical opinion to state' "he will die without it" or other such magic word nonsense.
what is my most likely path to getting it rated and possibly retro pay?
Vync posted an answer to a question,I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:
2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis
2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.
"...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.
First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date.
If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues.
I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.
It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.
Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.
Does this help?
Buck52 posted an answer to a question,Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.
The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.
Picked By66 bricks,
JKWilliamsSr posted a question in VA Disability Compensation Benefits Claims Research Forum,A couple months back before I received my decision I started preparing for the appeal I knew I would be filing. That is how little faith I had in the VA caring about we the veteran.
One of the things I did is I went through the entire M21-1 and documented every CAVC precedent case that the VA cited. I did this because I wanted to see what the rater was seeing. I could not understand for the life of me why so many obviously bad decisions were being handed down. I think the bottom line is that the wrong type of people are hired as raters. I think raters should have some kind of legal background. They do not need to be lawyers but I think paralegals would be a good idea.
There have been more than 3500 precedent setting decisions from the CAVC since 1989. Now we need to concede that all of them are not favorable to the veteran but I have learned that in a lot of cases even though the veteran lost a case it some rules were established that assisted other veterans.
The document I created has about 200 or so decisions cited in the M21-1. Considering the fact that there are more than 3500 precedent cases out there I think it is safe to assume the VA purposely left out decisions that would make it almost impossible to deny veteran claims. Case in point. I know of 14 precedent setting decisions that state the VA cannot ignore or give no weight to outside doctors without providing valid medical reasons as to why. Most of these decision are not cited by the M21.
It is important that we do our due diligence to make sure we do not get screwed. I think the M21-1 is incomplete because there is too much information we veterans are finding on our own to get the benefits we deserve
M21-1 Precedent setting decisions .docx