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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[Phoenix]

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

[Commander Bob]

You raise a few interesting questions, Phoenix... In search of resolution, is a "Request for Reconsideration" more expedient than filing a "Notice of Disagreement"? ... Does it depend on the VARO's backlog of NODs? Or, is it system wide?

You are kind in giving your VARO the benefit of the doubt. Your "new evidence" is actually overlooked ( or shredded, or lost..etc. ) SMR and VA records.

Also, I wonder if a denied claim, under reconsideration, without a NOD, dies with the vet?

Edited January 21, 2009 by Commander Bob 92-93

[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.

[john999]

Bob

I have done reconsiderations and NOD's and I am not really sure which is quicker. I think the VA just treats them almost the same. If you have good evidence you will probably win your claim. The thing I have found most useful is to speak to someone who is actually going to rate your claim be that a DRO or just a claims examiner. Whatever gets you in front of a real person to explain your claim is what has worked for me. I don't think reconsideration is a magic bullet. The only magic bullet is evidence and patience.

[ausgmblr]

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>

[Phoenix]

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)).