Galen Rogers

Hi Berta. Here is my original denial. On this new claim I provided a NEXUS letter from Dr. Bash. I did not submit the new claim as a CUE but Dr. Bash stated it was CUE in his NEXUS letter. The VA actually Put in a response to his CUE statement in this new response saying there was no CUE as a separate item in the VA Decision letter. VA 2008 Denial of OSA Redacted.PDF

Howdy all. I have a partial success. My OSA (sleep apnea) was just approved secondary to service connected (SC) GERD, My left knee problem was approved secondary to my SC right knee, my Tinnitus approved SC at 10%, and I have several in deferred status waiting on re-check C&P Exams (they did not like the first ones they got I guess). They disapproved my lower back problem as secondary to the SC right knee (caused a fall) . So I know I need to get a second opinion from a neurosurgeon on that one to support a NOD. The other NOD I want to submit is for the effective date of the OSA . I submitted my first claim for it back in 2008 and it was denied. I did not know about gathering the various support letters from previous shipmates or submitting medical articles that supported my claim. I trusted my REP (AMVETS) and followed his lead. My claim then was modified to say the OSA was secondary to Asbestos exposure. My own personal statement said that it was not. I did have SC Gerd then but my Rep and the VA did not connect it then. So I want to do a NOD on the approved effective date requesting it be back dated to the original claim 2008 date. Is the NOD the proper way to do it and will it stop the updated compensation from starting? My updated claim status is below. Disability Rating Decision Related To Effective Date plantar fasciitis, bilateral Deferred allergic rhinitis 0% Service Connected 03/01/2000 mitral valve prolapse Not Service Connected thoracic outlet syndrome, left upper extremity 10% Service Connected 10/26/2001 gastroesophageal reflux disorder 10% Service Connected 03/01/2000 obstructive sleep apnea 50% Service Connected 12/29/2017 complex tear of the right knee medial and lateral meniscus, popliteal cyst, and osteoarthritis (previously rated as surgical repair of medial meniscus tear, right knee) 10% Service Connected 10/01/2001 lumbar degenerative disc disease, disc rupture Not Service Connected left knee anterior cruciate ligament rupture with tearing of the medial meniscus with osteoarthritis 10% Service Connected 12/29/2017 sinusitis with retention cyst Deferred thoracic outlet syndrome, right upper extremity 10% Service Connected 10/26/2001 hemorrhoids Deferred asthma Deferred irritable bowel syndrome Deferred cervical spine degenerative disc disease Deferred tinnitus 10% Service Connected 12/29/201

Howdy all. Just a short update. I pulled back the two NODs I was submitting based on various responses and other threads here. I was going to submit an additional claim to re-open my chronic sinusitis but my Rep told me I should just wait for everything I have already submitted to be adjudicated. I had an estimated date of Dec 2018 but it just jumped to May 2019. I have had C&P exams on both knees, lower back, spine, GERD, Rhinitis, hearing (Tinnitus claim), exercise induced asthma, and irritable bowl. They are sending me back for another one on the following: DBQ SINUSITIS, RHINITIS AND OTHER CONDITIONS OF TH NOSE, THROAT, LARYNX AND PHARYNX DBQ MED OPINION DBQ RESPIRATORY CONDITIONS OTHER THAN TUBERCULOSIS AND SLEEP APNEA DBQ MED OPINION DBQ NECK (CERVICAL SPINE) CONDITION DBQ MED OPINION DBQ INTESTINAL CONDITIONS (OTHER THAN SURGICAL OR INFECTIOUS), INCLUDING IBS, CROHNS DISEASE, ULCER DBQ MED OPINION DBQ MED OPINION DBQ Foot Conditions including Flat foot (Pes Planus) DBQ MED OPINION I have already had ones for all of this except my feet. Guess they did not like the results from the first ones. I submitted requests to get copies of two of the four I already have had but of course they say it will take months to get them.

Thanks! I have not received the decisions yet. Just getting my knowledge up to speed before they come in. I hope they say yes to all and back date the couple that should be. I also hope to win the lottery this week. This forum has been a great help in understanding the true nature of the VAs approach in dealing with our claims.

UPDATE: Received my C-File and my STRs. Both are a jumble, not in order, mess. The good thing is I now have the actual C&P examiners report concerning my original claim back in 2001. I never had any exam for my 2008 OSA claim that was denied so All that is there is the denial letter for that. My VSO (Virginia DVS) is a nice person and a disabled vert herself. SHe may be swamped or just not proactive. I received a request for additional support data on the reopening of the OSA claim and she never once contacted me about it. All I did was upload all of the support documents I originally gave the VSO to submit and supposedly did. One thing I do find odd is that she told me that they could not upload anything and that it had to be manually provided to the VA by them or they could not represent me if I appeal anything. I can see the documents I uploaded for the OSA but nothing else. Estimated decision date is Feb 2019. Guess time will tell about her support as my VSO.

I have submitted requests to reopen a few items the VA denied initially in 2001 and 2008. I have also requested some increases of items they did approve in 2001. SO my question is concerning submitting a NOD if I disagree with the VA. Do I submit one NOD per claim even if I have multiple disagreements for that claim like percentage and effective date? Or would I submit an individual NOD for the effective date and one for the rating?

Well I went to my C&P exam with all my historical records on my left knee and back since the fall that injured both. I called the main POC for the exam to verify exactly what it was for and they stated "just your left knee and lower back". So i did not take any additional info concerning my right knee. And of course she examined my right knee also. So I apologized for not also having copies of the additional medical visits and surgery that I had on my right knee since it was originally approved by the VA in 2001. Luckily the last XRAY report on my left knee included the details on my right knee since it was taken for the ortho consult that Tricare sent me to at Fort Belvoir Hospital. All of the new MRIs for my right knee is in my request for increase. The doctor said she had access to that. I asked about a copy of the exam report and was told I would need to as the Roanoke VA office for a copy. I was also sent for new xrays for the VA and I can get a copy of those directly from the hospital. I also stayed off my pain meds for about 10 days prior. So I was at my normal wobbly painful self. Not as bad as it gets but definitely at the average pain level 4 to 5 out of 10.

I have a C & P Exam scheduled for my left knee and lower back secondary to my service connect right knee claim. What extra data should I take with me? Should I take my lay statement that fully describes what happened with my right knee that caused the damage to my left knee and lower back? The letter told me to bring any diagnostic test results and list of meds specifically prescribed for the new conditions.

Berta - No I was never prescribed Pseudoephedrine by the VA. While in the Navy I was and they also had in their cold packs that you could just go to the pharmacy and ask for without a prescription. broncovet - My VSO has told me that they can't find enough data in my STRs to support my sinusitis CUE even though I have a NEXUS letter. I was never sent to an ENT to be treated. Navy always just treated me in the clinic by GPs, flight surgeons, or corpsman. They always mentioned it could be chronic sinusitis but never was it definitively diagnosed. My CT scans showed the cysts or polyps but showed everything else as normal. Now that I've been diagnosed with the Vasomotor Rhinitis I figure I can't really claim sinusitis anymore. Of course my continuous symptoms equal and exceed what is listed for 30% chronic sinusitis. Unfortunately those symptoms are not part of the criteria for 30% vasomotor rhinitis/allergic rhinitis. So I guess I will try to prove that the retention cysts are the same as polyps.

Howdy all. I have suffered from allergy symptoms and chronic sinusitis symptoms for years. My STRs all hypothesized that I had moderate chronic sinusitis but never an absolute diagnosis. I had xrays that indicated there might be retention cysts or polyps but were not conclusive. I had a CT scan in 2004 that definitively stated there were bilateral retention cysts in my sinus. When I filed in 2000 the VA gave me 0% for allergic rhinitis but denied that I had chronic sinusitis. Now I have had the constant pain and pressure around my eyes and ears clogging up for more years than I can count during service and after. I ate pseudoephedrine like candy for years until it started affecting my ability to urinate. It is the only thing that lessens the pain and pressure. The allergy medicine only helps with the normal allergy symptoms like sneezing, itchy eyes, etc.. So I finally had it and went back to the doctor asking to be sent to an ENT. Instead she sent me to an Allergist. He confirmed that I was correct in that my allergies were not the true cause of the pain and pressure. He informed that I have vasomotor rhinitis along with my allergic rhinitis. SI guess I need to go back to the VA and request an increase in my Rhinitis since they both are rated under the one code. But I also feel it should be back dated to my original claim. Am I just being wishful or is it something I should pursue.??? I know the most I can get is 30% but that is better than 0%.

I have requested it. But won't get it until June to August time frame. I will discuss it with her again at my next appointment.

It does not go into specifics on what types of claims, initial or appeals. It is somewhat out dated but then not sure how much time he has to update stats. I believe there are alot of folks on here that know of Dr Bash and his assistance to vets. There are other doctors I have read about also but none with first hand experience with.

Here is some info on DR Craig Bash. He did my IMO/NEXUS letter. Dr Bash VA Experience 2017.pdf

I'm sure he is pretty busy. I did email him but received no response. So I moved forward with talking to the Virginia Department of Veterans Services. First impressions: The rep I spoke to was knowledgeable, interested in my details, and straight forward. She did say that she could not let me look at my C-File that she will have access to but she can tell me what's in it (more of a "I ask and she answers"). For my CUE claims, they have a legal staff that she will send them to for review. I will wait and see on that. So first impressions are good. But as someone said "trust but verify".

My last post may have been confusing. I emailed the "ASKNod guy. Waiting on his response. I plan to personally visit the Virginia State VSO today. They take walk ins after lunch.

I sent him an email requesting his assistance if available. Waiting on a response.

Thanks all. At the end of the day I agree we are the one that is totally responsible for our claim. The more I research the more I find that there is a ton of information on the web plus you all here that can help make or break a claim.

Howdy All, My local AMVets rep (Quantico) quit and now they are scrambling to find someone else and are not taking any new claims on. It could be several months. There is also a Virginia Veterans Admin office on Quantico and they say they also help with VA claims. I know the individual VSO is more important than what organization they represent. Can anyone refer me to a VSO that actively participates in the process and is not just a pass thru window in the Fredericksburg, VA area or one who can deal with me over the phone and internet?

Berta thanks for the clarification. Definitely makes your head swim. At least I will know on the next claim I file. I do believe I have reason for a CUE on the actual denial,. I just have to get the details down correctly. Have an IMO/NEXUS ltr and DBQ from Dr. Bash. I have a DBQ from my treating certified Sleep Doctor and waiting on a statement from him that will hopefully say my in-service symptoms make it "more likely than not" that I had it in service and possibly caused by my GERD, Rhinitis, and Chronic Sinusitis based on medical studies published at the time of my original claim. I also have a list of VA Citations approving appealed OSA claims that were based on those same chronic ailments (all finalized before my original claim and denial). Gastone, I submitted the claim myself and did not go through the VSO. When I talked to him before I submitted the claim he pretty much said he thought it had no merit and refused to submit it. I received a letter from them after I received the denial telling me I was wrong for not going through them. They were still listed as my POA-VSO with the VA so they received notice of the denial. The VSO never told me that he intervened in the original claim I submitted. I don't have a copy of that original submission and it's not online. I have requested a copy of my C-file but have not received it yet. Due between June and August this year.

Hi Berta, I just re-read your post about the VCAA and CUE. I never ever even considered that letter. SO I have a question. My claim was in 2008 for sleep apnea. It was denied. I did not submit lay letters or NEXUS, etc. My SMRs only referenced chronic headaches, morning confusion (short period of time), dizziness a couple times, leg cramps a occasionally, chest pains, and fatigue once. My VCAA stated that the VA needed evidence to support my claim of sleep apnea due to asbestos exposure. My claim was never for that. It was just for sleep apnea. There is no mention of exposure to asbestos in any of my medical records. I never had any exposure as far as I know so there was no one who could provide those lay letters including myself. So I did not submit anything. I was diagnosed and rated (in 2001) 10% for GERD and 0% for Allergic Rhinitis. I was diagnosed for chronic sinusitis in service but VA denied that in 2001. I have attached the VCAA letter for the sleep apnea. Do I have a case based on the erroneous reference and request for asbestos documentation? VA VCAA Ltr Sleep Apnea Claim 2008. PDF.PDF

I may be wrong in my assumptions on what requesting to re-open my OSA claim due to new evidence being available. If i did only that and not for reason of a CUE, would my effective date if approved be retro to 2008 or the date of the claim re-opening?

My CUE recommendation came from Dr Craig Bash. I trust his opinion and I am following his recommendations. Also Since the original claim was submitted and denied in 2008 I am past any chance of submitting a NOD or an appeal. I have only two choices. I can submit a CUE if I feel there is justification or request the claim be reopened if I have new evidence. If I request to reopen my claim that will establish a new effective date as I understand the rules. Please let me know if I am wrong in that understanding. If I submit the CUE and VA concurs then my effective date will be back to the 01 Jan 2008 claim date. If they do not concur then I can still re-open the claim or file a new claim based on new evidence not available during the original claim.

Buck52 understood. My IMO and NEXUS specifically states the links between them and that I am medically required to use the CPAP every night. The original claim had the sleep study results from 2007 that diagnosed me with OSA. I also have a new sleep study from 2 months ago that also diagnosed OSA. Of course the VA may tell me to pack sand. I will stay positive about it. I had the symptoms and problems for years in service and afterwards but like I said before the corpsman or doctor told me to "get over it" because everyone was tired because of optempo, etc. I now do have the lay letters that provide evidence of the issues, snoring, complaining about headaches and constantly dozing off. So if my CUE is not approved then I will just submit a new claim for it with all of the additional evidence. At the end of the day I know now I was not fully prepared to submit this claim back in 2008. I did not understand about lay letters, NEXUS letters, and appealing. MY VSO refused to submit so I did it on my own. So he was of no help when it was denied. Still at the end of the day the responsibility falls in my lap and no one else's. I am grateful this website exists and that I found it. It has helped open my eyes about a lot of things regarding the whole VA claims process.

I appreciate everyone's comments and I hopefully have not offended anyone. The CUE is based on the fact I did have 3 seperate conditions diagnosed in service that all are directly related to either causing or playing a large part in causing OSA Allergic Rhinitis, Reflux, and Chronic Sinusitis). Also there were medical studies and documents published at the time that linked those items in a cause and effect relationship with OSA. That is well documented in my records. Also I did have sleep disturbances listed in my SMRs (fatigue, headaches, difficulty sleeping). I had 11 separate visits to sick call in my SMRs that were symptoms of OSA. Finally my IMO and NEXUS letter provided by a reputable doctor supports all of that. The CUE is that they did not apply the evidence at the time in my SMRs or the medical literature/study results in existence at the time, and obviously did not provide me a fair probative evaluation as required. So again like I said earlier it will be up to the VA to decide if my request has merit. Here's what I think it falls under. I may be wrong. Title 38: Pensions, Bonuses, and Veterans' Relief PART 4—SCHEDULE FOR RATING DISABILITIES Subpart A—General Policy in Rating §4.3 Resolution of reasonable doubt. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter. [40 FR 42535, Sept. 15, 1975]

I have a NEXUS letter and IMO from Dr. Bash who has helped others and I have seen him referenced here. The NEXUS states it as a CUE because Reflux, Rhinitis, and Chronic Sinusitis have all been linked as contributing to the OSA problem and even cause of. Several medical studies were in existence at the time of the denial that referenced that. The CUE is based on the fact that the required medical evidence was in my records and or available to the VA at the time of my denial and they did not apply the evidence IAW the law at the time. Whether or not the VA will agree is still to be determined. If they screw me on the technicality of me not specifically saying "Secondary" then I will just have to submit a new claim. All I can do is try. Allergic Rhinitis - 0% (currently requesting increase) Reflux - 10% (currently requesting increase) Thoracic Outlet Rt Arm - 10% Thoracic Outlet Lft Arm - 10% Right Knee - 10% (currently requesting increase -2nd surgery since original rating and now require replacement Total - 40% I had other issues denied. Chronic Sinusitis (CUE being submitted - diagnosed three separate times in my SMRs and on my retirement physical)) Plantar Fasciitis (diagnosed in service but C&P exam denied it because it was not problematic at that time.) Mitral Valve Prolapse (diagnosed in service but C&P exam could not hear it so denied it) I'm also submitting claims for secondary left knee, cervical spine, and lower back due to a fall caused by right knee buckling. I'm also submitting claim for Hypertension due to OSA (that one will hinge on successful OSA rating), IBS (may just be combined with my Reflux), Tinnitus, asthma (exercise induced), and hemorrhoids (already had one surgery for these). All of this was listed numerous times in my SMRs just did not know they were ratable and my original VSO wasn't much help in that arena. My new VSO (moved) says I should submit all of this at the same time. I see him on the 27th.