Phoenix

Nope I am not working and no, I don't believe I was considered for IU. *ponders tossing more rocks in the VA pool*

Another reminder--Layperson evidence can be given only about symptoms. You can say I have had numbness and pain in my leg since 2006. Your doctor can say you have had a history of numbness and pain since 2006 that was most likely a symptom of the back injury. It is more likely than not that the back injury caused the symptoms you reported in 2006 and your condition was misdiagnosed. The second you try to give that nexus yourself, your evidence gets tossed becase you dont have medical training.

Back problems... Here is what I know about them and the VA. I have a herniated disk L5-S1 that was operated on while in the military. The VA rating doesn't take into account pain or numbness from the back injury if it radiates from that injury. They only care about range of motion and will declare everything else as transitory pain from the back injury. If you can bend forward and backward past a certain range, you will get nothing. Now if your nerve damage is causing your pain becase of piriformis muscle being clenched around the nerve, I believe that's another 10%. Keep in mind, VA calculations may not get you to 50%.

I am now rated at 70%. The rating decision states, "You filed a reopened claim on January 14, 2009. Based on a review of the evidence listed below, we have made the following decisions on your claim." Under Evidence, It states "-Review of rating decision and evidence delineated in decision dated 12/9/08" My guess is that new evidence triggered a review, but you can see from my letter at the beginning of the thread, I had good supporting evidence that was showed my medical records were ignored during my initial decision. The copies of my service records clearly showed the diagnosis while on active duty. The IMO was rather cheap for me. I told my medical provider that if she didn't write a letter, I would be forced to seek care at the VA hospital and she would lose my business. I showed her my evidence that supported my claim, was nice about it and she agreed to write the letter. Sorry I haven't been around much, Job hunting and all. The Sacramento area sucks for job hunting.

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.

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)).

Your injury sounds like a back problem... I went the surgery route while on active duty because I couldn't live without taking 800mg motrin 3Xday and I was 31 years old. While my pain has somewhat returned, I can still walk around and had a few years with no pain (now 41). My view was simply if the surgery didnt work, then I would still be in tons of pain. -Phoenix

The real "New evidence" in my case is the actual sleep study that was done and my receipt for the CPAP equipment... The nail in the coffin is my latest sleep study which says my doctor reviewed the sleep study done and my service medical records from when I was on active duty and my compliance report from my CPAP machine to show it has been used since my last active duty doctor appointment. I will end this submission of "New Evidence" with a statement saying I have no further evidence to submit, please reconsider the decision without waiting the 30 day period for additional submission of new evidence. If the VA reviews it and still refuses to grant my claim or decides to ignore it, I NOD before my year is up.

I put submission of New Evidence in big bold letters at the top of my form when I sent it in. Hopefully that made it a little more clear. On a side note, I am very happy that Ret Gen Shinseki is the new Secretary of the VA. I used to brief him out of Andrews AFB a lot and he always took care of the troops. He made it a top priority. The best thing is the unit coins he handed out were shaped like dog tags with a slot on the side to open beer bottles. I am watching the clock very closely. Processing claims quickly but inaccurately is not an answer to the current backlog. Anyway, Thank you everyone for your help and I will check back very often and update you all on what happens. -Phoenix

Thanks J and John, I am trying to avoid all the delays caused by requesting the DRO at this time. Additionally, when they provide a SOC to me, I want to see if they list the new evidence I just submitted to them(hoping them listing it will win it right there). If I go with the NOD now, it might cause my case to bounce around. I am confident that my claim is valid and I will win this battle. My case is solid and clear cut based on the evidence. At least that's the way it seems to me. "Fighting the VA is like a hand of Poker, play your cards and hope you aren't dealt aces and eights." -Phoenix

To J, I will go for the NOD next. Here is my planned response based on your assistance and additional information. Notice Of Disagreement I disagree with the decision dated December 9, 2008 that denied my claim for sleep apnea. I filed new evidence on January 16, 2008 supporting my claim in response to the VA's request for additional information within the one year time limit granted by the VA.(Attachment 1). I request a de Novo review of the decision by a Decision Review Officer and I intend to request a Substantive Appeal if this claim continues to be denied. I was diagnosed in service and issued a CPAP machine and still have the condition to this day. According to the regulations the sleep apnea is service connectable if is was diagnosed in service and a current treatable condition. The use of a CPAP machine warrants a 50 percent rating per the regulations. Please reconsider the denial and correct this decision and apply the proper rating criteria for this claim per the title 38 cfr 4.97. 4.97 Disorders of the respriroty system. Sleep Apnea. 6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed): Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy 100 Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine 50 Persistent day-time hypersomnolence 30 Asymptomatic but with documented sleep disorder breathing 0 --I think that hits all the boxes for step two. I will wait for them to respond to my new evidence first, checking every 30 days for further activity. Hopefully this letter helps others as well.-- --Phoenix

Thank you for all the help! Here is what I went with. On December 9, 2008, a decision was rendered to deny my claim for Obstructive Sleep Apnea with CPAP based on incomplete or overlooked evidence taken from my service medical records. I am submitting new evidence that was not included in my Service Medical Records or was overlooked. The decision stated that on or about 19 Jan 2005, I was referred to ENT but no follow up was done. The overlooked evidence indicted in my Service Medical Records is as follows, copies of these records have been provided: A1. On 02 APR 2007, I was seen at NNMC Bethesda, MD at the Walter Reed Sleep Clinic for snoring, excessive daytime sleepiness, multiple awakenings at night and symptoms suggestive of Obstructive Sleep Apnea (OSA). A polysomnography/split study was ordered. It was also noted that I had been a shift worker for 20 years which has been found to cause or aggravate OSA. A2. On 20 SEP 2007, I was seen at NNMC Bethesda, MD at the Walter Reed Sleep for a follow-up to review my sleep study which was conducted on 09 JUL 2007. The sleep study indicated: Respiratory Disturbance Index= 45/Hour Diagnosis= Obstructive Sleep Apnea CPAP 9CM Doctor Directed START CPAP therapy with 9CM H2O pressure. CPAP was issued. A3. On 08 JAN 2008, I was seen at NNMC Bethesda, MD for a follow-up. I was issued a chin strap to improve treatment and directed to increase use of CPAP>6-7 hours/night for maximum benefit. The Following additional evidence has been provided as proof that the OSA began while in military service before my retirement on 31 MAR 2008: B1. Sleep Study from the Laboratory for Sleep disorders dated 9 JUL 2007 indicted "a significant degree of sleep apnea". B2. Delivery Ticket from Respira Medical on 20 SEP 2007 showing delivery and receipt of CPAP to myself. The Following additional evidence shows the OSA is continuing and currently present as well as treatment compliance: C1. Sleep study from California Sleep Solutions dated 20 NOV 2008 indicating Moderately Severe Sleep Apnea with a Respiratory Disturbance Index of 49.7/Hour. C2. CPAP Treatment Compliance Information 7 JAN 2008-5 JAN 2009 indicating treatment compliance. This new evidence supports a permanent/chronic sleep apnea condition requiring the use of CPAP therapy incurred in or aggravated by military service. --Hopefully this does the trick. I read that medical records currently in the VA's posession is not considered new evidence, even though it may have been overlooked. That's why I submitted new evidence that those medical records were founded on and the receipt (Items B1 and B2) in addition to evidence showing its a current condition (C1) and being treated from before I left active duty(C2). I filed this with the California Department of VA and they sent it to the regional office. Thoughts? -Phoenix

So that would be a notice of disagreement. I was advised to enter new evidence based on the fact that I had filed in August 2008, 6 months ago which puts me in the one year limit for submission of evidence towards a claim and should force them to reopen the case file. Can they legally ignore/overlook evidence of a disease that was incurred in service like they have?

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 </SPAN></SPAN>