Which Way To Go...new Evidence Or Nod?

[Phoenix]

Greetings all,

I am reposting the following here in the hope that I can gain some insight in what to do next.

I had a service connected claim of obstructive sleep apnea with CPAP which was denied because the VA found no evidence in my SMR.

I am a tad miffed because in my service medical record shows my diagnoses of Obstructive Sleep Apnea and to start CPAP therapy in September 2007, but this wasn't even referred to.

I had my CP exam in October 2008 and showed the doctor my SMR with the diagnoses and sleep study results listed on it, but not the actual sleep study. The doctor stated that I had subjectively reported I had sleep apnea but no evidence was given that I had it.

Now my question is should submit a letter of new evidence that includes copies of the overlooked medical records, my actual sleep study refered to in those records, my reciept from the CPAP machine I was issued, my last sleep study on Nov 2008 showing I still have sleep apnea and the print out showing my treament compliance or should I send in a Notice of Disagreement? The whole claim has not been rated yet as they have deferred one decision.

As a side note, thedeferred rating of one of my conditions left me right at 40%. Any guidance on this?

-Phoenix

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[Berta]

Hopefully the IMO conforms to the criteria for IMOs I posted here under IMO topic.

Sounds like your NOD was strong and/or you filed for reconsideration.

Good advise- they told my former vet rep he didnt have HBP (due to DMII AO) because he took HBP meds.

They use faulty logic to see if we allow them to get away with it.

Update: My claim was reopened and is being reviewed.

Here is a nice tidbit I found for a poor vet that was denied SC OSA because he didnt have the symptoms of sleep apnea anymore because he used his mask.

It says continued treatment is not enough... Ensure you say you still have symptoms when not treated.

Anyway, I have a IMO being written today that I will post which should be the end of my needed evidence.

Continuity of symptomatology may be

established if a claimant can demonstrate (1) that a

condition was "noted" during service; (2) evidence of post-

service continuity of the same symptomatology; and (3)

medical or, in certain circumstances, lay evidence of a nexus

between the present disability and the post-service

symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson,

12 Vet. App. at 253 (lay evidence of in-service incurrence

sufficient in some circumstances for purposes of establishing

service connection); 38 C.F.R. § 3.303( .

"Symptoms, not treatment, are the essence of any evidence of

continuity of symptomatology." Savage, 10 Vet. App. at 496

(citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).

[Phoenix]

Greetings all,

News from the front... The submission of new evidence has been processed and my claim was awarded.

Date submitted: Jan 14, 2009

Date Awarded May 19, 2009

Thank you for all your help and guidance. Your help probably shaved a year off the process.

[pilgrim01]

Phoenix,

CONGRATS!!! Did they consider it a Reconsideration with new evidence? I am going through that right now. (I, too, am prior USAF with 40% disability). :) I retired Nov 08, received my award mid-March and just submtted a Reconsideration with new evidence 14 April.

Congratulations on your award! What is your rating now? I hope mine has a result such as yours! :(

Edited May 21, 2009 by pilgrim01

[Pete53]

Congrats!!!!

[Berta]

WOW Phoenix this is GREAT news!

I am curious too- NOD or Recon Request-

A strong NOD with additional probative evidence can turn a decision around as well as a strong Reconsideration Request-

An IMO-while they can be very costly-can recover their own cost with a few VA comp checks that a vet would never get without the IMO.

This is fabulous news.

[pilgrim01]

Phoenix,

Are you there... :D