doc25

You can apply for it if I'm not mistaken.

A CUE is a clear and unmistakable error that is difficult to prove. You were serviced-connected 30% back to 2015. That's great news! You may be able to appeal the effective date to 2004 if your service medical record clearly shows you were, in fact, diagnosed with asthma in-service. If, in fact, you were diagnosed in-service with Asthma, you basically, caught the VA lying to deny your claim. There's a slight chance that is a CUE. Maybe other forum members can correct me if I'm wrong. [Be advised that if you develop or have developed Sleep Apnea ;it can proximately be due to or a result of your service-connected Asthma/COPD. Sleep Apnea is rated 50% with a documented "medically necessary" CPAP machine, meaning a doctor must state the CPAP machine is "medically necessary". You'll need a sleep study to confirm you have sleep apnea, diagnosis, and a nexus of opinion. This might help better explain what I mean: https://www.hillandponton.com/4204-2/

That's how my C&P went with my sleep apnea secondary claim. I was done within 10-15 minutes. Although, my claim was denied twice prior to that C&P exam because I didn't have a DBQ or nexus of opinion. You have the DBQ, at the very least. There's more good news than bad news in your case. The good news is that you meet two out of three requirements for secondary connection. #1. Must have a service-connected condition. Check. #2. Must have a current diagnosis of secondary condition claimed. Check #3. Nexus of opinion stating the minimum threshold of "at least as likely as not" (50% or greater probability) the condition claimed is proximately due to or the result of Veteran's service-connected PTSD and it is "medically necessary" for the veteran to use a CPAP or other breathing assistance device. Additionally, a clear and concise rationale must be provided. You do not have a nexus of opinion...yet. Which depends on whether the examiner concurs with the provided DBQ. ( The DBQ is vital in that it should have everything that the examiner needs to input to substantiate your claim. ) Now for some slightly bad news.... An NP or Nurse practitioner, I gather, did the exam which provides room for errors to be made and your C&P would be deemed flawed IF your claim is denied. IF it gets denied. APPEAL, APPEAL, APPEAL. Even with the nurse practitioner doing your exam. I'm about 65% certain you'll receive a favorable decision. Best wishes on your claim.

In 2007, I received a C&P exam for bilateral flat feet(in-service diagnosis) that was done by a Physician Assistant and in the exam results it appears pure speculation was used for congenital flat feet (I entered service with normal archs). Would this be a flawed C&P exam?

It's good you're asking these questions. Part of the claims process is ALOT of anxiety, disappointment, and anger. These feelings are common. I went through them too, as many other veterans have. You're not alone in this process. The only guarantees in the whole process are these: 1. When your claim closes and it is granted you will see the change in percentage immeadiately and you will see in your disabilities claimed "Service-connected" in E-Benefits. 2. The VA Envelope containing the results of your claim in the mail. Unfortunately, once a claim is submitted it is in the hands of the Regional Office that received your claim. If your claim is granted, it will vindicate your claim. If your claim is denied, APPEAL, APPEAL, APPEAL. Try to stay off of ebenefits, as much as, possible. I almost drove myself beyond crazier than I already am .

I have a few questions. #1. Did you claim OSA, as secondary to PTSD? Or as a Direct-Service Connection claim? #2. Do you have a copy of your DBQ and sleep study?

You were not diagnosed with PTSD. But, you were diagnosed with the two mental health conditions above. I'm not trying to give you false hope, but it appears you received a favorable decision. #1. You met the in-service stressor criteria #2. You met the diagnosis criteria #3. You met the minimum threshold of "at least as likely as not" as the result of an in-service stressor related event. And a rationale was provided. Look in Ebenefits in the "Disabilities" menu and see if your conditions were deemed service-connected or not service-connected. They will probably combine the "Other Specified Trauma- and Stressor-RelatedDisorder with Panic Disorder" together . Why were they combined this way? It is a big no-no to pyramid conditions in VA disability claims. Best wishes.

I don't have an answer for your SMC, but I have an answer for your Sleep Apnea that was not service-connected. You may want to re-claim Sleep Apnea, as secondary to Major Depressive Disorder. OSA is rated 50%. Mental Health conditions are well-known to cause Sleep Apnea. Do you have a current diagnosis for OSA? Have you been prescribed a "medically necessary" CPAP or other breathing assistance device?

It looks like you're going to receive a nice retropay back to 2015. #1.You got the Asthma/ COPD issue service-connected, which is always awesome. (Be advised if you've been having sleep issues pertaining to Obstructive Sleep Apnea? You may want to get a sleep study done. If in fact, the sleep study shows you have sleep apnea, be sure it says that a "medically necessary" CPAP or other breathing-assistance device is required in the sleep study impression or in the prescribing doctor's notes. You can claim OSA, as secondary to Asthma/COPD. Which will be rated seperately at 50%) #2. If there is a CUE, you can appeal the effective date to 2004. Congrats and best wishes if you decide to appeal.

VSO's are good, but not always great. The VA uses the Joint Services Records Research Center (JSRRC) to corroborate your in-service event/injuries. According to your post, there was already a paper trail that memorandum and sworn statements existed. In your lay evidence statement try to give an approximate timeframe of when and where your injuries occurred. Those documents exist, but you'll need to assert and remind the Regional Office that took your claim to look in the JSRRC and locate them there. The good part about the whole scenario is that you were seen at a VA facility soon after all your injuries occured. You didn't wait to be seen. I concur with broncovet about the caluza factors.

To me, it looks like the presumption of sound condition was completely disregarded. All the examiner needed to know was that if it was or wasn't in your entrance exam. Period. The law clearly and unmistakably says what is required. Nothing more, nothing less. The longer this drags out, the more $$$ is going into your bank account.

The examiner's nexus is inadequate and; to be honest, shows the examiner's gross incompetence of how to write a nexus of opinion. The examiner did not correctly use "not due to" or "less likely than not" in her nexus. Therefore, that's an inadequate nexus of opinion. Furthermore, to allude to, that a determination could not be made because of pre-military history? Is wrong and unlawful. If she had looked at your daggum entrance exam, any etiology or pre-military history of a mental condition would have been noted. If it wasn't noted in your entrance exam, you were deemed healthy of mind and body. You're going to have to appeal on the basis of an inadequate nexus of opinion, inadequate rationale, and gross incompetence of the presumption of soundness rule. The only way that the unfavorable nexus could POSSIBLY be overruled is if your buddy statements corroborrate the VA's Joint Services Records Research Center (JSSRC) requests. Hope this helps. It might be a setback, but you're not alone in this fight. Just gotta standby to standby for the official VA letter in the mail. 38 U.S. Code § 1111 - Presumption of sound condition US Code Notes prev | next For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1119, § 311; renumbered § 1111 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406.)

How many migraines do you experience per month that keeps you out of work? Have you lost jobs or lost promotion opportunities because of the migraines? I've provided the criteria for migraines towards the end of this post. Go over the medical evidence you have, see if it matches up with the 50% criteria, and send in the documentation that proves you're at 50% , otherwise if you don't meet the criteria, build up on medical evidence. If you do meet the criteria, by all means, appeal the 30%. If you don't meet the 50% criteria, build up to the medical evidence and request an increase from 30% to 50%. Are you service-connected for Depression? If you're not, Migraines can cause secondary Depression. On your question about TDIU: TDIU is one area of disability claims I'm not experienced with yet. For that I'll ask for Berta, Tbird, Broncovet, and any other forum member that has experience with TDIU claims to answer this question. MIGRAINE HEADACHES: With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability ........................................................... 50 percent With characteristic prostrating attacks occurring on an average once a month over last several months .... 30 percent With characteristic prostrating attacks averaging one in 2 months over last several months ................... 10 percent With less frequent attacks .............................. 0 percent

I've narrowed it down to VA ratings schedulers and DROs at Regional Offices that screw up veteran's claims about 90% of the time by not following laws and statutes. If they don't know how to rate a claim or claims, they just pass the buck to the BVA to decide. From my analysis, Ratings Schedulers and DROs are left out in the cold just as much as us as veterans. I do feel ROs need to branch into three departments "IN-SERVICE CLAIMS" ,"SECONDARY SERVICE CLAIMS,and "POST-SERVICE CLAIMS". This would make for Ratings Schedulers to be better trained in applying the appropriate laws and statutes to a claim. Each department handles the appropriate claim. We can't expect another human being to know all of the CFR 38 handbook. I know it's wishful thinking.

Was that a civilian Dr. or VA dr. that said you were mistaken and didn't need a letter? Because that Dr. is sorely mistaken. A nexus of opinion IS required to prove a service connected or secondary service connected disability. I had a Secondary Sleep Apnea claim denied twice. To reopen that claim I just submitted a Sleep Disability Benefits Questionnaire that my VA pulmonologist filled out(I was lucky). A VA dr. or Civilian Dr. can fill one out. But, unfortunately, it's up to the Dr.s discretion to fill one out. VA Directive 1134 provides guidance for VA doctors on medical opinions and filling out DBQs. You can invoke this directive, if a VA doctor refuses. Just a thought. https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=4300 For any doctor to provide a nexus of opinion they must state the minimum threshold of "at least as likely as not" the veteran's condition is due to military service. I agree with Broncovet appeal to the DRO review first, but if the DRO denies the claim again. Send the claim to traditional appellate review(BVA). RAMP is available for a faster appeals process. In the meantime, you can make attempts to get a Dr. to review all the medical evidence you have; fill out a DBQ or provide a nexus of opinion. It'll add weight to your claim. Best wishes.

It wouldn't hurt to file an FOIA with VHA to find out that sort of info. Worst they can say is no. I'll look into it. Might be awhile though.

I use my health insurance. I figured if I have employer health insurance, the least I could do, is use it so my insurance can pay some of the VA services. VA can take care of another veteran that is homeless and unemployed that doesn't have insurance. But, that's just me.

The VA podiatrist I was seeing over the past three years diagnosed me with flat feet, which he concured with an in-service diagnosis from 2006. Yet, two weeks ago, I asked him what the difference between congenital flat feet and acquired flat feet was? He flat out denied I even had flat feet from service or that he diagnosed flat feet. I even showed him his own note and my in-service diagnosis. Denied again to my face. Incompetentance is systemic with many VA docs. I will say there are docs that try.

The good thing is that the vet is SC 0%. Do you have a copy of the SMR/STR that meets the 80% criteria for symptoms? If the service medical record is present for symptoms that meet the 80% criteria, by all means, file the NOD. If the Veteran you are representing has not been going to the VA or a private doctor, after-discharge, to follow up on the "symptoms" of Narcolepsy. A claim to increase, will be difficult to be granted. The diagnosis alone won't help the veteran substantiate the increase. The diagnosis and "worsened symptoms" will. Veterans are compensated for symptoms, the diagnosis just opens the door. Symptoms knock that door down. Here is part of an appealed case that granted a veteran Narcolepsy. Disregard the other issues. It provides valuable information on how to substantiate an increase for Narcolepsy. I hope this paints a better picture. 1. Entitlement to a rating in excess of 50 percent for obstructive sleep apnea, with narcolepsy, hypersomnolence, and disturbed sleep. Narcolepsy with Cataplexy As indicated, narcolepsy is rated under Diagnostic Code 8108 which provides that the disability be evaluated as petit mal epilepsy. Petit mal epilepsy is rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a , Diagnostic Code 8911. Under Diagnostic Code 8911, both the frequency and type of seizures that the Veteran experiences are considered in determining the appropriate rating. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8911. Narcolepsy consists of recurrent, uncontrollable, brief episodes of sleep, often associated with hypnagogic or hypnopompic hallucinations, cataplexy, and sleep paralysis. (See Dorland's Illustrated Medical Dictionary (32nd ed. 2012)). However, narcolepsy and cataplexy are separate disorders. Narcolepsy is a condition characterized by brief periods of sleep, while cataplexy is a condition in which there are abrupt attacks of muscular weakness and hypotonia. See James v. Brown, 7 Vet. App. 495, 496 (1995) (citing Dorland's Illustrated Medical Dictionary (27th ed. 1988) for definition of cataplexy). To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician, and regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. It is also provided that the frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. 38 C.F.R. § 4.121. Under the rating criteria for petit mal epilepsy, a 10 percent disability rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent disability rating is assigned when there has been at least one major seizure in the last two years; or at least two minor seizures in the last six months. A 40 percent disability rating is assigned when there has been at least one major seizure in the last six months or two in the last year; or averaging at least five to eight minor seizures weekly. A 60 percent disability rating is assigned when there has been an averaging of at least one major seizure in four months over the last year; or nine to ten minor seizures per week. An 80 percent disability rating is assigned when there has been an averaging of at least one major seizure in three months over the last year; or more than 10 minor seizures weekly. A 100 percent disability rating is assigned when there has been an average of at least one major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8911. A VA medical record dated in August 2008 shows that the Veteran was said to have narcolepsy syndrome, which was a lifelong disease caused by an orexin deficit and associated with cataplexy and excessive daytime sleepiness. VA outpatient treatment records dated from August 2008 to February 2010 show that the Veteran continued to experienced narcolepsy with cataplexy. In April 2009, it was indicated that he had no problems with rebound cataplexy. In May 2009 it was noted that he had one to two episodes of cataplexy during the preceding month. A VA examination report dated in July 2009 shows that the Veteran was said to have a 20-year history of narcolepsy with cataplexy. A typical attack was described as a loss of control of his muscle tone, nodding of the head and sometimes body function, feeling wiped out as if he cannot move any part of his body, and feeling like he is standing off in space. It was said to be evoked by itself, with stress, and with anger or excitement. It was alleviated by medication. Over the preceding two years, he was said to have had 1,200 attacks in total, averaging 50 each month. He kept no attack diary. He added that he had lost many jobs as a result of the condition, and that the overall functional impairment included not being able to drive or play sports. Following examination, the diagnosis was narcolepsy with cataplexy. The examiner, a physician, indicated that the condition was active, and manifested by 10 narcolepsy attacks per week and six to eight cataplexy attacks per month. Neurological examination was normal, and he did not have a seizure disorder. A VA Narcolepsy Disability Benefits Questionnaire completed by the Veteran's physician in September 2012 shows, in pertinent part, that he was diagnosed with narcolepsy with cataplexy, excessive daytime sleepiness, sleep attacks, and sleep paralysis. The frequency of cataplectic (narcoleptic) episodes was indicated to be more than 10 per week. Anger was said to trigger the cataplexy, where his head would droop and feel jelly-like. The examiner added that since the Veteran continued to have sleep attacks and episodes of cataplexy, it was hard for him to work. In an October 2012 statement, a registered nurse who worked with the Veteran for more than two years indicated that she witnessed the Veteran experiencing the effects of narcolepsy on several occasions, to include during meetings and morning reports, and in the nurses' station at the computer. A lay statement from the Veteran's supervisor received in October 2012 shows that the Veteran was said to have six to nine narcolepsy and cataplexy episodes a day just at work. Additional lay statements received in October 2012 demonstrate that the Veteran experiences between five and 10 episodes of narcolepsy and/or cataplexy daily. During the May 2015 hearing, the Veteran testified that he would experience more than 10 episodes of narcolepsy per day. He added that he would experience three to four episodes of cataplexy per month. He described that during such episodes he would lose body function and muscle control. In light of the above and resolving all reasonable doubt in the Veteran's favor, the Board finds that he is entitled to a disability rating of 100 percent for narcolepsy. In making this determination, the Board acknowledges that he has had at least, and often more than, 10 narcoleptic episodes on average per week (often daily), which is consistent with a higher 80 percent disability. The Veteran is only entitled to a disability rating of 80 percent based solely on his narcolepsy as narcolepsy is rated as petit mal epilepsy under Diagnostic Code 8911. As indicated, Diagnostic Code 8911 provides for a 100 percent disability rating only in instances in which the seizure activity is characterized as major which contemplates tonic-clonic convulsions in addition to unconsciousness. The medical evidence shows that the Veteran has been diagnosed with narcolepsy to include cataplexy. He has testified that he experiences three to four episodes of cataplexy per month. In addition, VA examiners have all confirmed ongoing monthly cataplexy episodes. In the case of this Veteran, the Board finds that the combination of narcolepsy and cataplexy results in attacks that are comparable to major seizure activity, including loss of muscle control. Under these circumstances, the frequency of the Veteran's attacks, amounting to at least one per month, warrants a 100 percent disability rating under the criteria in Diagnostic Code 8911. In making this determination, the Board has considered the VA examination reports along with the lay evidence of record. In this regard, those providing lay statements are competent to describe the lay-observable symptomatology of the Veteran's narcolepsy and cataplexy. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Moreover, as to frequency of epileptic seizures, the Rating Schedule specifically provides that "competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted." 38 C.F.R. § 4.121. The Board notes that the regulations also provides that "[w]hen there is doubt as to the true nature of the epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary." The RO did not order neurological observation in a hospital, and the Board concludes that a remand is not necessary here to obtain such a study or to obtain another medical opinion to decide the claim as the evidence of record is sufficient for that purpose. Accordingly, resolving the benefit of the doubt in favor of the Veteran, the Board will grant the higher disability rating of 100 percent for narcolepsy with cataplexy for the entire appeal period. 38 U.S.C.A. § 5107(b). Furthermore, in light of the Board's assignment of a 100 percent schedular rating, the potential assignment of an extraschedular rating is rendered moot. A separate 100 percent disability rating for narcolepsy with cataplexy is granted for the entire appeal period, subject to the applicable criteria governing the payment of monetary benefits.

You want to contend that the C&P exam was inadequate in your claim. Is this correct?

I agree. VA Symptomology 101 is in session. Which is why it's also always beneficial to keep building medical evidence for symptoms related to SC conditions or secondary conditions.

Sounds good. But, you might want to appeal the effective dates for your rated disabilities. Then again, other than getting a bit more change in your pocket. You're still going to get retropay with the current effective dates.

Gunny, On the issue of mood disorder. "Direct-service connection"; unfortunately, won't be granted if there is no in-service diagnosis/event/injury. There is another way to service-connect it. Your Headaches are high enough and debilitating enough now , that it will aggravate or make your mood disorder worse. "Secondary-service aggravation" is probably the best route to consider. Secondary Service Aggravation Secondary service aggravation is a little different from Secondary Service Connection in that it is not something that was directly caused by the service-connected illness or injury but was aggravated by it enough that it is now an issue of its own. To secondary service aggravation a condition a veteran's claim must meet these requirements: #1. Veteran must have a service connected disability. Which you do with your headaches. #2. Veteran must have a current diagnosis. Which you do with mood disorder #3. A Dr.'s nexus of opinion must "at least as likely as not" (equal to or greater than 50% probability) link #1 and #2. A rationale must be provided explaining why. Which you'll need to obtain by a private Dr. or VA Dr.; a C&P examiner can also provide it during a C&P exam. The problem with your initial claim isn't anything you did wrong. The VA contracter made the mistake of merely speculating that your mood disorder was caused by military service. Without finding an inservice diagnosis or event in you SMR and giving a rationale of why your mood disorder was caused by military service. Since you did serve in theatre during the Gulf War. You have described your symptoms on here that are consistent with Gulf War Syndrome. Gulf War Syndrome symptoms can include: This website is a good resource. https://www.militarydisabilitymadeeasy.com/gulfwarsyndrome.html I hope this gives you some good info moving forward with your claim/appeals. Rah!

I'm rated 70% PTSD, 50% Sleep Apnea, as secondary to PTSD, 10% Tinnitus, and 10% L knee pain. Puts me at 88%, rounded to 90%. Hopefully, the ratings scheduler can separate your Cardiac Arrhythmia, on a secondary basis. I'm about 75% sure this will be the case. 25% that there is a probability the ratings scheduler will interpret it as pyramiding, but then that would be going against competent medical evidence already concluding the secondary service connection to your heart disease, and that would be a clear and unmistakable error. Keep us updated. Again, best wishes.

That's freakin' awesome! Like I said, all indications point to a favorable decision, just gotta wait on that decision letter for confirmation.Also, you might see your percentage increase in ebenefits before you receive your decision letter. Hopefully, you don't get low-balled by the ratings scheduler handling your claim and you get the 10% increase.