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I filed the NOD when migraines were denied in the past. They sent a SOC and I completed the Form 9 to send to Board of Appeals. I must have asked for a DRO review at that time and that is when I received this response. Once this was completed, it was certified to the board. Can I still file an NOD or should I let the process take place with the board? My concern is that according to the 5 year rule, it must show that I have had permanent improvement. With me still having migraines, I would say that that is not the case. Am I reading the 5 year rule wrong? This decision resulted in a nice back pay amount. How does the appeal to the board affect the back pay? Will they still pay it or wait for the results from the board before they pay? I know the last time I had a decision back dated, it took over a year for the back pay to hit my account and I had to email the Secretary of Veteran's Affairs. Any input is appreciated!!

Quick question about staging and the five year rule. I recently received a decision from the VA stating the following: Evaluation of migraine headaches, which is currently 0 percent disabling, is increased to 30% effective May 1, 2008. A non-compensable evaluation is assigned from October 17,2013. Reasons and Basis: Evaluation of migraine headaches, which is currently 0 % disabling, is increased to 30% effective May 1, 2008. A non-compensable evaluation is assigned from Oct 17, 2013 the date medical evidence established sustained improvement. A 30% evaluation is assigned from May 1, 2008, the day following your discharge from service since you have maintained a continuous claim and appeal since that time. We have assigned a 30% evaluation from your migraine headaches based on: Characteristic prostrating attacks occurring on an average once a month over the last several months. You VA examination of Dec 2, 2008 relayed that you had prostrating episodes once per month. (Warrants a 30% evaluation) VA examination March 31, 2010 found no incapacitation/prostrating episodes of headaches. VA examination Oct 17, 2013 found no incapacitation/prostrating episodes of headaches and established sustained improvement. VA examination May 24, 2016 found you to have prostrating attacks less frequently than one in two months. Treatment records from VAMC show no treatment for headaches. Treatment records from WHA show that you were prescribed Celex and Imitrex for headaches. These records show migraine headaches, not intractable without staus migrainosus stable and medications for migraine prophylaxis work well. Your NOD indicates that you had headaches June 8, 2017, June 9 2017 in which you treated with Imitrex and had to lay down and on June 14, 2017 you took medication at work. You may submit evidence of missed work due to migraines or additional treatment records for consideration or you may file a claim for increase if you feel your condition worsened since you last examination. The Court of Appeals for Veterans Claims noted in Fenderson v. West, 12 Vet. App. 119, 126, (1999) that the evidence pertaining to an original evaluation might require the issuance of separate, or "staged" ratings of the disability based on the facts shown to exist during separate periods of time. This provision has been applied in your case and a staged rating has been done. Examiner Notes: Oct 2013 DBQ - Does the Veteran have characteristic prostrating attacks of migraine headache pain? Yes, less than once every two months. May 2016 DBQ - Does the Veteran have characteristic prostrating attacks of migraine headache pain? No Medical History: "The current symptoms include migraine headaches 2-3 times per week, but some weeks are better than others." "The pain is accompanied by nausea (no vomiting), photphobia and sonophobia, and will push through the pain at work, as will take Imitrex or aleve at work. However, if at home he will go to sleep in a dark, quiet room, and usually awakens feeling better". Additional notes from NOD: In addition, I am providing recent entries into my headache log: 6/8/17 - (2) doses of Imitrex and had to lay down to get the headache to go away 6/9/17 - Treated with Imitrex and had to lay down to get the headache to go away. 6/14/17 - Treated with Imitrex at work. 5 year rule: If the rating has been in effect for 5 years, it cannot be reduced unless your condition has improved on a sustained basis (The VA must have documentation supporting this is a permanent improvement). If I am reading the five year rule correctly, VA must have documentation of permanent improvement to reduce a rating that has been in place for more than five years. Is that correct? With the rating decision, the 30% disability was in place for more than 5 years. Even though I had a period where the headaches were better, it has not improved on a permanent basis based on examiner notes and headache log entries. Recommendations on filing NOD?

Quick question about staging and the five year rule. I recently received a decision from the VA stating the following: Evaluation of migraine headaches, which is currently 0 percent disabling, is increased to 30% effective May 1, 2008. A non-compensable evaluation is assigned from October 17,2013. Reasons and Basis: Evaluation of migraine headaches, which is currently 0 % disabling, is increased to 30% effective May 1, 2008. A non-compensable evaluation is assigned from Oct 17, 2013 the date medical evidence established sustained improvement. A 30% evaluation is assigned from May 1, 2008, the day following your discharge from service since you have maintained a continuous claim and appeal since that time. We have assigned a 30% evaluation from your migraine headaches based on: Characteristic prostrating attacks occurring on an average once a month over the last several months. You VA examination of Dec 2, 2008 relayed that you had prostrating episodes once per month. (Warrants a 30% evaluation) VA examination March 31, 2010 found no incapacitation/prostrating episodes of headaches. VA examination Oct 17, 2013 found no incapacitation/prostrating episodes of headaches and established sustained improvement. VA examination May 24, 2016 found you to have prostrating attacks less frequently than one in two months. Treatment records from VAMC show no treatment for headaches. Treatment records from WHA show that you were prescribed Celex and Imitrex for headaches. These records show migraine headaches, not intractable without staus migrainosus stable and medications for migraine prophylaxis work well. Your NOD indicates that you had headaches June 8, 2017, June 9 2017 in which you treated with Imitrex and had to lay down and on June 14, 2017 you took medication at work. You may submit evidence of missed work due to migraines or additional treatment records for consideration or you may file a claim for increase if you feel your condition worsened since you last examination. The Court of Appeals for Veterans Claims noted in Fenderson v. West, 12 Vet. App. 119, 126, (1999) that the evidence pertaining to an original evaluation might require the issuance of separate, or "staged" ratings of the disability based on the facts shown to exist during separate periods of time. This provision has been applied in your case and a staged rating has been done. Examiner Notes: Oct 2013 DBQ - Does the Veteran have characteristic prostrating attacks of migraine headache pain? Yes, less than once every two months. May 2016 DBQ - Does the Veteran have characteristic prostrating attacks of migraine headache pain? No Medical History: "The current symptoms include migraine headaches 2-3 times per week, but some weeks are better than others." "The pain is accompanied by nausea (no vomiting), photphobia and sonophobia, and will push through the pain at work, as will take Imitrex or aleve at work. However, if at home he will go to sleep in a dark, quiet room, and usually awakens feeling better". Additional notes from NOD: In addition, I am providing recent entries into my headache log: 6/8/17 - (2) doses of Imitrex and had to lay down to get the headache to go away 6/9/17 - Treated with Imitrex and had to lay down to get the headache to go away. 6/14/17 - Treated with Imitrex at work. 5 year rule: If the rating has been in effect for 5 years, it cannot be reduced unless your condition has improved on a sustained basis (The VA must have documentation supporting this is a permanent improvement). If I am reading the five year rule correctly, VA must have documentation of permanent improvement to reduce a rating that has been in place for more than five years. Is that correct? With the rating decision, the 30% disability was in place for more than 5 years. Even though I had a period where the headaches were better, it has not improved on a permanent basis based on examiner notes and headache log entries. Recommendations on NOD?

He is talking about the progression of Sleep Apnea. Based on the results of the initial sleep study, there were not enough events to be diagnosed with OSA. The official diagnosis did not come until 2014. At that time, I was put on CPAP. I discharged in 2008.

I am SC for Chronic Sinusitis, Allergic Rhinitis with Nasal Polyps Benign, Mild Obstructive Pulmonary Disease. My ENT surgeon (Navy Capt, retired; (Septoplasty)) wrote in his operation report - preoperative diagnosis was (1.) Obstructive Sleep Apnea and (2.) Deviated Nasal Septum; Postoperative Diagnosis was the same. The original claim was denied and the VA stated that “service treatment records do not contain complaints, treatment, or diagnosis for this condition” (Sleep Disturbance (Sleep Apnea)) and that “there was no actual diagnosis of sleep apnea in service, only snoring was the outcome of the study”. They did not find a link between my medical condition and military service. I filed a NOD with the highlighting the following points. (All of this information was submitted with the original claim) I had a sleep study done in Sept 2007 which showed 2 Obstructive Apneas, two hypopneas, loud snoring, and a total AHI of 0.5 events per hour with 1.6 events per hour in REM. Oxygen saturation nadir was 89%. (Polysomnogram report states under history: "referred for he evaluation of SNORING, EDS. The current Epworth Sleepiness Scale was 14." According to the Journal of Clinical Sleep Medicine, (Vol. 5, Nos. 2009) "OSA is defined by occurrence of daytime sleepiness, loud snoring, witnessed breathing interruptions, or awakenings due to gasping or choking in the present of a least 5 obstructive respiratory events per hour of sleep. I had another sleep study done in 2014 that showed an apnea-hypopnea index of 19 events per hour with oxygen desaturation nadir of 83%. CPAP was prescribed at that time for mild to moderate OSA. I contacted my surgeon and he wrote a NEXUS letter that stated "it is my opinion that it is more likely than not that the veteran's current condition of OSA represents a progression of disease that occurred while he was on active military service". The VA denied it. I appealed it to the Board of Veteran's Appeals. After I filed the Form 9, I also received another NEXUS letter. (I had requested previously but did not receive it, so I filed without the second letter) My pulmonologist, who monitors my CPAP usage, stated "Sleep apnea tends to worsen with time and weight gain and his moderate OSA which was diagnosed in 2014 is more likely than not a progression of his symptoms that originated while he was on active military service". Thoughts?

Thanks for the help! I am happy to report that in less than 2 weeks from contacting the Secretary, my back pay was deposited into my account. Still waiting on the back pay from the latest increase, but its only been a couple of months. I will give them a little time.

Thank you! I will have try it, it can't hurt! Brian

Is there anything that I can do to persuade/encourage the VA to pay me my back pay? I had a claim settled over a year ago and have not received my back pay. There is currently a Retired Pay Adjustment and Authorization review in the E-benefits dated the same date as the decision. I know for fact that the "audit" has been returned from DFAS so I can't understand what the hold up is. The projected completion dates for these two claims is 09/16 - 12/17. I don't understand what the hold up is. The VA has already determined that I rate the increase and is paying me for it. Any suggestions would be greatly appreciated!

Bronocovet, I was able to contact my surgeon and he provided the following letter. He is now retired an in a private practice, but he was more than willing to review the documentation and provide what he could.

broncovet, I said Camp Lejeune because the IDES Camp Lejeune office is the one who contacted me about the claim. Their provider did the ACE. I have been retired for almost 8 years now, so it isn't within a year. None of this was in my entrance physical and happened while in service.

Thanks Asknod. Can you do the 3288 in ebenfits or is it better to do it at the intake?

I will order my C-File and see what it says. Thanks!

Thanks broncovet. They VA office at Camp Lejeune contacted me so I will be calling them back to find out who did the ACE exam. I know it wasn't the lead provider who was supposed to do it because they were called away. It was given to one of the other providers. I will see if they will give me that information. If not, is it in the C-File? I only have 60 days to appeal this decision according to the SOC. Brian

Thanks for the response Berta. The surgery was done at Camp Lejeune in 2007 before I retired in 2008. Even though I have the VFW as my rep, I have been doing all of my claims by myself. I could have buggered everything up. I never tried to tie the sleep apnea to my sinusitis, polyps, or OPD. I always felt that with the diagnosis from the surgeon while in service would be clear enough...I guess I was wrong! I do have copies of my SMR. Which personnel file? From the VA? The in service complains were loud snoring, hypersomnolance, and fatigue. They are documented in my SMR. Original sleep study states "referred for the evaluation of snoring and EDS (Excessive Daytime Sleepiness). Surgical Notes state "history of loud snoring, mouth breathing with difficulty breathing through his nose" and the referral for the second states "with malaise, fatigue, and symptoms suggestive of sleep disordered breathing". My wife complained of my snoring and was sleeping in another room which I think was documented as my snoring causing marital discourse in my SMR. There wasn't a statement on TDIU probably because I am employed full time. Brian

I recently received a denial from the VA for obstructive sleep apnea. I retired from the Marine Corps in 2008. I am service connected for: ( Not all are listed, just gulf war and ENT type) Allergic Rhinitis With Nasal Polyp Mild Obstructive Pulmonary Disease (Environmental Hazards in Gulf War) Sinusitis (I had sinus surgery in 2015) IBS (Environmental Hazards in Gulf War) Tinnitus In Oct, 2007 I was referred for a sleep study for snoring and excessive daytime sleepiness (EDS). I had a sleep study done that had the following conclusion: (Sleep Care of Wilmington) There were 4.0 respiratory arousals, 4 snore arousals, 30 periodic limb movement arousals and 41 spontaneous arousals. Respiratory events showed 0 central apnea(s), 2 obstruction apnea(s), 0 mixed apnea(2) and 2 hypopnea(s). Impressions: Normal polysomnogram Recommendations: 1) Treatment of snoring with considerations of upper airways patency issues, weight loss, and avoidance of sedating medications or alcohol. 2) Consider multiple sleep latency test for further evaluation of hypersomnolence. Clinical correlation is suggested. My PCM referred me to ENT and was scheduled for a Septoplasty at the Naval Hospital Camp Lejeune in Nov. The operation report shows the following: Preoperative diagnosis: 1. Obstructive Sleep Apnea 2. Deviated Nasal Septum. Post operative diagnosis. Same. (Sleep Center) In March 2014, my PCM referred me for another sleep study with malaise, fatigue and symptoms suggestive of sleep disordered breathing. The study showed Mild OSA, moderate in REM sleep, suggesting CPAP therapy may be of benefit. I have been on CPAP since then. Reasons and Basis for Denial: Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Disabilities require three components in order for service connect to be established. First, there must be an event or diagnosis while on active duty or a diagnosis showing manifestation to a compensable degree within one year after discharge (for certain disabilities/diseases). Secondly, there must be a present diagnosis with continuity of treatment. Third, there must be a link connecting the present disability and the disability diagnosis to service. Service connection may also be recognized for a disability or disease which pre-existed service but was aggravated beyond its normal progression due to military service. In addition, service connection may be recognized for certain conditions which manifest to a compensable degree following discharge from service. Service connection may also be established for disabilities which occur as a result of service-connected disability. Your service treatment records do not show treatment for or diagnosis of sleep condition during service. You provided reports from Sleep Care of Wilmington and Camp Lejeune Naval Hospital which noted you to have problems with snoring during service. However, you were not diagnosed with a sleep condition or sleep apnea during service. Your report from Atlantic Sleep Center diagnosed you with obstructive sleep apnea in March 2014 but did not provide a link between this condition and your military service. Your VA examination of March 20, 2014 concluded that your current mild sleep apnea was less likely than not a progression of your complaints in service. On June 12, 2014, you submitted a VA Form 21-526EZ claiming that you sleep disturbances/sleep apnea was the result of Gulf War Unexplained chronic multi-symptom illness. The "Gulf War Veterans Benefits Act" authorizes VA to compensate any Gulf veteran suffering from a "Qualifying Chronic Disability," resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing either during active duty in the Southwest Asia theater of operation during the Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the theater. Section 202 of the "Veterans Education and Benefits Expansion Act of 2001" expanded the definition of "qualifying chronic disability" to include (1) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster or signs or symptoms; and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service-connection. To fulfill the requirement for chronicity, the claimed illness must have persisted for a period of 6 months. The 6-month period of chronicity is measured from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first because manifest. At your VA examination of February 10, 2016, (Acceptable Clinical Evidence exam) the examiner reviewed your condition and determined that it is less likely than not related to a medically unexplained chronic multi-symptoms illness related to your Gulf War service. The examiner stated that your 2007 study showed no evidence of sleep apnea and that it was not until 2014 that such condition was found. As such, the examiner found no medically unexplained chronic multi-symptoms illness related to your Gulf War service. Based on these findings, service connection for sleep disturbances (sleep apnea) is denied. My items of contention are: 1. The denial states that "Your service treatment records do not show treatment for or diagnosis of sleep condition during service." Does the Ear Nose and Throat Surgeon who diagnosed me preoperative and postoperatively with Obstructive Sleep Apnea count as a diagnosis in service? 2. The denial goes on the state that "Your VA examination of March 20, 2014, concluded that you current mild sleep apnea was less likely than not a progression of your complaints in service". Now you admit that I have the signs and symptoms of sleep apnea (Loud snoring, there were apnea events in the first study but not enough to warrant a diagnosis from the study, Daytime sleepiness) Any insights / thoughts are greatly appreciated! Brian