Frustrated

[thegat]

 

 

 

 

 

V.A issues.docx

[thegat]

Good day folk.

Hope everyone is having a good day. I’m not! Just went into my E-Benefits page a found out that My claims for Sleep Apnea and my Back conditions among other things was Denied! I’m currently rated at 40% right now with 10% Tinnitus, 30% PTSD. I did 9 ½ years active duty with a trip to afghan in 2009 and finished my service in the reserves in 2019. I believe I know where I went wrong with the Sleep Apnea by not filing it as a secondary. I’ve done a sleep study with the V.A recently and it came by that I have it.  They have issued me a machine for my breathing. The only issue is apparently it isn’t service connected. I don’t see how it isn’t because I told them in my initial statement that it started when I was deployed. In my final deployment exam I told them that I had been having issues with my sleeping when I was deployed. I told them that I had back issues when I was active duty. They did an X ray on me just about 4 months ago and it showed some stuff wrong with my back. They issued me medication and are giving me therapy. This condition came back not service connected. The snuffed me on My flat feet claim when I was active duty And the doctors even at annotated it. If you know anything about the human body, you know the next thing you probably will have issues with is your knees. Guess what? Surgery on the left knee but while I was in the reserves. Again documented! And as I mentioned before on here I think they sold me short on my PTSD! Listens I filled for some of this stuff like my feet, knees and pseudo folliculitis  back in 2004. The notes made in my 2009 deployment should have been a shift walk in the park as far as the PTSD, Back issue, Sleep apnea. Active duty from 1996-2004. Due to me being in the reserves from 2005 to 2019 I was told just to wait till I retire. Maybe that was a mistake??? I think I’m at a point where it is time to go looking for a lawyer! Do I look for a lawyer now or do I file for an appeal first? Thanks for letting me vent!

[GBArmy]

thegat First question is did you have an IMO for these claims? Even if you have med records showing some "issues" that may be the cause, you need a med diagnosis and connection that your sleep difficulties, for example, are a direct result from your service event. Service connection ia a big deal. If the examiner says they don't think a disability was caused by an in-service event or issue, without an IMO, you don't have a chance at least on the first go round in the disability process. Same is true for flat fee related to knee, etc., etc. Protect your effective date by filing an intent to file. Then research your next step.

[Buck52]

thegat

Sorry to see they denied your claims  but don't feel to bad that happens to 95% of all us veterans especially first time claims. or 31% as the VA Says

if you can post your denial on ALL your denials  we can help you better.

Sounds like to me you might have a CUE brewing..if you have submitted your evidence  and this evidence was documented while you were still in the military  or if you filed within 1 year after your ETS.

The evidence must show on record that you had medical problems while in the military..now on some of the contentions that your claiming was not documented while you were in the military  then you will need a IMO as GB Army mention in the above post.

you  may need an IMO ( Independent medical opinion)   from a qualified  medical Dr  his/her professional opinion that  your******  condition is likely as not caused or related to your military service   you need this to established service connection first..after you established service connection then you need a Dr to state your condition or symptoms is related to or caused by military service ect,,,ect,,,

if you were diagnose for OSA (Sleep Apnea) and you have medical records that you reported a sleep disturbance while you were in the military  you can get that service connected and at least a 50% rating if they prescribe you the C-PAP Machine medically to use  then yes you can file a secondary claim for the OSA   especially if you have a service connected condition that can be related or the cause of your sleep apnea   example  PTSD  can cause OSA  so it can be a secondary claim  to your PTSD/Meds

IF YOU HAVE SUBMITTED YOUR EVIDENCE TO PROVE WHAT YOUR CLAIMING AND THEY NEVER USED IT  OR EVEN MENTION IT ?  THEN YOU GOT A CUE Claim ,THAT EVIDENCE IS FAVORABLE FOR YOU TO HELP SUBSTANTIATE YOUR CLAIM &  IF THEY NEVER USED IT TO MAKE THEIR DECISION AND YOU WERE DENIED..  that spells CUE..

.HOWEVER THE EVIDENCE MUST SHOW PROBATE EVIDENCE TO HELP SUPPORT YOUR CLAIM  OR CLAIMS  IN YOUR FAVOR AND WOULD HAVE CHANGE THE OUTCOME OF THEIR DECISION

post your denials here on hadit   you can use this same post...  and we can better help you.  cover your name and file number and any personal information.  WE NEED TO KNOW WHY THEY DENIED YOU.

Edited August 26, 2020 by Buck52

[Buck52]

I stand corrected about filing a CUE Claim or Motion to Revise.

The claim needs to be closed, or a final decision made but you can still Appeal this.

I am not sure the regulation to use when they neglect to look at your evidence  and not read your records, they do have a duty to assist under  38 us code 5103

I would need to go research this evidence part if they never read your evidence or used it in their decision.

I can't think of the 38CFR Regulation on that.?...but they do have one

some others can chime in

[Buck52]

.

I am not sure the regulation to use when they neglect to look at your evidence  and not read your records, they do have a duty to assist under  38 us code 5103

I would need to go research this evidence part if they never read your evidence or used it in their decision.

I can't think of the 38CFR Regulation on that.?...but they do have one

some others can chime in.

However I run across this at hadit

“If The veteran’s assertion of CUE is based on VA’s failure to consider highly relevant medical evidence, that is, the RO denied the existence of medical evidence that was clearly of record at the time of the rating decision. The Board is convinced that the RO committed error based on the record and the law that existed at the time the decision was made and had the error not been made, the outcome would have been manifestly different

 

Edited August 26, 2020 by Buck52

[USMC_VET]

@Buck52 is correct, we need to see the following.

-Denial Letters from all previous denials (scrub your name, address, socials either in adobe, make copies and write over it or cover with post it notes)

- List of evidence you submitted for each claim.

        example: 

              OSA -

                   1) Service Medical records from 2009, post deployment questionairre stated that i had issues with sleeping.

                  2) VA sleep study

                  3) CPAP titration ordered, CPAP approved and prescribed.

 

 

Now to address some of your claims and their issues, and take this with the understanding its based on my own subjective experience and doesnt necessarily indicate a "winning" strategy but is what worked for me. Every rater, VARO is different and what worked for me here may not work for you there or would work again here.

OSA:

I had OSA issues for many years after and while i was in friends told me about things that while i was sleeping would have indicated those same issues.  however i had ZERO evidence in service on paper that i had OSA, no BAS reports or anything that would support this claim.  The first time i made the claim i included buddy statements as to what they had seen, and had been diagnosed with OSA (after i had gotten out) and given a CPAP.  I was however denied this claim and I tried to reopen it a few years later and again was denied.  This past year I submitted the supplemental claim for OSA secondary to PTSD and decided to do it right.  I got a IMO from a psychologist and a medical dr. that my PTSD aggravates my OSA since my sleep issues interefere with the effectiveness of the CPAP treatment and my nightmares cause me to rip off my mask during the night; my machine always reads about 1 hour of use.

I won this claim with 50% rating in April

The denial letters + evidence will help alot to really dig down on what went wrong in your claim and/or what they missed or screwed up in their denial.  However it sounds like you have two of three points for the caluza triangle. a current diagnosis & the inservice event (mention of sleeping issues).  However i wouldnt consider the post deployment mention a slam dunk, without seeing it they could just see that as you having issues going to bed or insomnia and not OSA.  however combined with sworn statements from yourself and buddies stating that your issues started  during or before deployment and that mention it should be enough.  I would REALLy recommend you get a IMO, which would connect both that inservice event, buddy statements, etc with the current diagnosis.  I dont know your current financial situation but Dr. Anaise is who i used.  it cost $1500, but this would be a roughly $700 a month increase and if you file your NOD on time you could be looking at roughly $7000 backpay so the numbers would make the investment worthwhile.

Plantar Fasciitis:

Once again we need to see the denial letters and evidence you submitted to know what went wrong.

Sounds like you have exit physical that annotates it.  What i did was get my entry physical when i first went in, part of that should be a foot examination. compare that to your exit and as long as it shows degeneration, i.e. your arch got worse you should have any problem showing an inservice event/aggravation.  You will also need a current diagnosis of plantar fasciitis so if you dont have anything recent i would reccomend going to a podiatrist/sports medicine clinic and having them do a physical. This is what i did, i went in, explained my symptoms and had the examination.  Afterwards i got the doctors notes, x rays, etc and included that in my claim.  

 

Back Pain:

It sounds like you reported back pain in service? you need those records showing your reported back pain and a current diagnosis of back issues to connect the two. If you havent gotten all of your service medical records you need to get them now, comb through them for ANY reported issue and note them down, even if its not causing a problem now, make copies of those  files and keep them seperate and file them together by symptom issue.  So now or in the future and you need evidence for back pain, you grab the filed folder for back pain and look through those files vs the whole stack.

A IMO might be helpful here and you might be able to get Dr. Anaise to tie the two together for the same $1500 for the OSA IMO.
 

 

Knees:

Since you had surgery in service this should be a no brainer as long as you have current symptoms of pain, etc.  If you do but havent had anything recent after the surgery i would get that checked out at the sports medicine clinic while you are getting your plantar fasciitis exam.

 

CUE:

I am NOT at all an expert on CUE so i cant talk about that at all, but you need to request you C File immediately and work with a VSO or someone who has access to VBMS to get a copy of whats in your C File to see what they had and didnt have. If they had the evidence and didnt consider it then you likely have a case, if its not in the C File you might be shit out of luck on that end.

 

For the future I would recommend the following

1) When submitting evidence whether its a new claim or a appeal you need to shotgun approach it

* Online (if new)

* Fax

*USPS

When you send it through the mail you MUST send it CERTIFIED WITH RETURN RECEIPT. This both proves you sent the evidence and it was received.  

We dont know yet what your cfile says about hte evidence that was considered in your claims, but if say it doesnt show the medical evidence that proves the inservice event and you had sent it certified, return receipt, you can prove that hte VA received it but never looked at it which is their fault.

2) use sworn statements like the example at the bottom.  This holds more sway than "buddy statements" since there is a legal punishment attached to it.  lets say your submit a lay statement that says you became a werewolf in 2009 during your service.  This lie isnt punishable since its just you saying something. if you put it in a sworn statement then you CAN be held to charges of perjury. I have no VA rule or citation to point too, however i think it has more "umph" than jsut a buddy statement given the legal penalies involved.

I use sworn statements to not only say X happened to me in service or X disability affects me in this way now but also to list out exactly WHAT im claiming and the history of my claim.  Make sure in these statements that you get friends that were in with you that can attest to X happening to you as well as people in yoru life now like spouse, family, friends, coworkers, boss, etc. whoever can help to not only say that they have seen you with back pain but HOW THAT PAIN AFFECTS YOUR WORK AND DAILY LIFE.  

providing evidence that X happened to you in service whether statements or medical records shows the VA that X in fact is a inservice disability, but statements about how it affects your life now, from loss of work productivity, or inability to move up in your job, fights with the wife, or retreating from events from friends shows the VA how they should rate it.  

3) On every claim/appeal that i have sent in since 2015 i make sure i cross all t's and dot all i's, by that i mean i make it really simple for a rater and really hard for them to not know they are missing evidence.

The first page of the claim is all my information, name, address, claim number (social) and a paragraph about what i am claiming and how many total pages (including cover) are included in this evidence submission.

Then i list out my evidence. If i am claiming multiple things then i separate the evidence into sections and leave a quick blurb of what is included in each part.

EXAMPLE:

 

Back Pain: 28 total pages

24 August, 2008 BAS Note (4 pages): Went to BAS for back issues, they prescribed me Ibprufen and referred me to higher level care

15 September Specialist Visit(12 pages): Was seen by spinal specialist who referred me for x rays and diagnosed my slipped disc and put me on physical therapy.

7 Feburary, 2009 Surgery (6 pages): underwent back surgery where pins were inserted, 3 months of physical therapy

8 June, 2009 Dotors Note (2 pages): visit for pain issues from surgery, prescribed tramadol

15 December, 2009 Dotors Note (2 pages): check up visit for pain issues from surgery, prescribed tramadol

12 August  2011 Dotors Note (2 pages): check up visit for pain issues from surgery, prescribed tramadol
 

I make copies and submit everything. I dont trust a rater to care as much about this claim as I do and really go through my medical records. Its not their fault, they are human and NO ONE, not a rater, VSO or someone on HADIT is going to care as much about this claim as you.  I make copies of the pages from my VA medical and Service Medical records that support my claim and put them in here.  I highlight on those doctors notes what i specifically want to make sure they see.  Raters wont just take your word for it of course and will check these pages against your records, but guess what? they will find its in there and you have provided them what to look for and made it easier for them to do the right thing.  

 

I wish you the best of luck and please, if you can, share those letters and general synopsis of the pieces of evidence you submitted.

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SWORN DECLARATION OF XX NAME XX

 

STATE OF  XX NAME XX  §

COUNTY OF XX NAME XX  §

Pursuant to 28 U.S.C. 1746, I, XX NAME XX, declare under penalty of perjury that the foregoing statement is true and correct:

1. "My name is XX NAME XX. I am more than eighteen years of age, of sound mind, and fully competent to make this affidavit. I have personal knowledge of the matters set forth below.:

2. In 2008 I was injured during a......

 

 

Executed on 6/27/2019

Signed:

 

___________________________________________

XX NAME XX

 

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