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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[jbasser]

In response to your NOD the VA will send you a Statement of case and ask you your preference for the DRO or the BVA hearing.

I did the same thing and they re-considered as a DRO level person looked at my claim and granted it on the spot.

They just have to look at it.

Hang in there.

J

[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

[sf_ranger]

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?

I always hope and pray that old or new evidence in any Veteran case is not ignored but it is... I am a prime example of evidence being ignored on my case and a Veteran in my group also had the same experience... Upon discovery the VA revised each of our claims to our favor or should I say "To support our experiences in the military".... If the VA wanted to really support Veterans then a 25% increase would be just a touch of what we missed during our service for our country.

God Bless our Troops and Veterans

[john999]

Phoenix

The statement you sent the VA about new evidence may be viewed by the VA as a NOD. Unless you typed in bold letters "REQUEST FOR RECONSIDERATION" you may get a SOC back with your appeal rights. The debate about which takes longer a reconsideration or a NOD/DRO APPEAl is short of iffy. The NOD protects your appeal rights. I believe from what we have discussed here on Hadit that even if you submit a reconsideration request you need to keep track of you NOD one year time limit to appeal.

[Ricky]

Keep in mind that the only thing that will prompt a SOC is if the veteran files a NOD and the informal appeals process ends in a continued denial or if the veteran never files a NOD and the one year period to file the nod expires. The primary reason for the SOC is to assist you in preparing your FORMAL appeal (VA Form9) and to get to that point you MUST have submitted a NOD in which the denial was continued. The second reason is to notify you that your appeal period has expired.

If you do file for a reconsideration you must have new and material evidence. In the majority of cases the reconsideration goes back to the same rater who made the original decision. He/she will determine if the evidence is new and material.

Once you have filed the reconsideration, as stated below you must keep track of the one year period. If not you will surely recieve the desired SOC but at that point it is to late as your appeal rights terminated at the expiration of the one year period.

If you have a service officer, they can assist greatly in tracking and determining if the reconsideration is being worked. However, if they tell you 11 months after filing the reconsideration that the VA is working on it you MUST still file your NOD immediately to protect your effective date and appeal rights. If you miss this time line the VA will take its ball and go home quickly as they do not play games with time limits.

Sorry to rant over and over but time lines in the claims process are set in stone.

[Berta]

I agree with Scout that a Reconsideration Request is in order here-

BUT mark your calender- as the NOD year filing deadline could run out before they even get to the Reconsideration Request.

However- this type of request could get you a better and faster decision than the NOD.

The VA failed to act on a Reconsideration Request I had made on a CUE claim but I was able to file the NOD before the NOD year ran out.