Kind Of An Out There Question About De Novo Review

[joeyjoeyb]

I filed an NOD back in Jan of this year for sleep apnea. This is what I submitted:

Notice of Disagreement This is a Notice of Disagreement with your rating decision dated 12 November 2008, which denied my claim for obstructive sleep apnea. I request my claim be afforded a de Novo review by a Decision Review Officer. I would also request I attend that review.

I believe my claim should be approved. Although there was not a diagnosis of sleep apnea while in service, there was a clear diagnosis shortly after being discharged (89 days after retirement date). Sleep Apnea takes time to progress and there is enough evidence of record that indicate the symptoms began while in service.

I received the "we received your request"....yada yada yada

I called the VA a few weeks ago to see if there was anything going on with my NOD. There was nothing going on, but the lady at the 1-800 number said that someone would call me. I received that call on Friday and basically the lady said that I was in a longggggg line and that it would be looked at in the order it was received. I asked her if I was going to be able to come to the review. She said no. Now I am kind of confused on how all this works. I thought that I would be able to be at the review, if and when that happens. Am I just totally wrong here? I did send in new evidence after I requested the review. Can someone help me out with the order of events. It is at the Atlanta VA regional office if that makes a difference. I really did not know that this could take 2 or more years. Thanks

[Berta]

I feel a complete copy of the C file and all medical records is some of the best info a veteran can have.

Both a c file copy and complete copies of med recs can reveal things that a VARO appointment with someone hovering over you will not reveal.(and the things that a decision might well overlook)

As well as a complete copy of SMRs and any additional types of service records.

[broncovet]

JoeyJoey

You, like many other Veteran Victims, are at a distinct disadvantage. I know what you meant, YOU know what you meant, when you stated, "I would like to attend the review". This means you want a hearing, not a review, since you are present at a hearing but not at a review. The VA uses there own lingo, and uses our lack of knowledge about it against us.

Your best bet is to use that knowledge against them. Here is my recommendation:

You can go ahead and submit additional evidence for your review, in writing, and hopefully you will win. If you win, dont do anything. If you loose, then complain that you did not get your requested hearing, as you asked, "I would like to attend the review".

You can cite Moody VS Principii which states:

"In Roberson we held that the VA has a duty to “fully and sympathetically develop a veteran’s claim to its optimum,” 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)), and that this requires the VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” Id. The Court of Appeals for Veterans Claims held that Roberson did not apply here because it “identified a narrow factual scenario which sufficiently raises an informal claim for TDIU within the meaning of 38 C.F.R. § 3.155(a)” and “there is no indication that the facts of this case coincide with those of Roberson.” Moody, slip op. at 3-4. However, this distinction disregards the broader holding of Roberson. As we recently confirmed in Szemraj, “Roberson requires . . . that the VA give a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations.’” 357 F.3d at 1373 (quoting Roberson, 251 F.3d at 1384) (alteration in original). This duty applies “with respect to all pro se pleadings” before the VA. Id. "

I personally think this part highleted in bold means that you dont have to use the word "hearing" to get a hearing, that a "sympathetic reading" of your fiilings can be reasonbly construed as you desire to have a hearing. There are many times when the Veteran did not understand the right lingo, but the court gave the Vet a sympathetic reading in the Vets favor.

As I said, dont do anything if you win, but if you loose, ask the court to throw it out based on the fact that you had request to be in attendance, that is, a hearing. JMHO

[john999]

When you review your file at my VARO you sit at a table with the C-File and a rep from the VA stays in the room with you to make sure you neither add or subtract anything from the file. If you need a few copies they will make them for you, but won't copy you whole file on the spot.

[joeyjoeyb]

Well first of all...my VSO has told me that he does not think I will ever win this NOD because there was nothing in my SMR's about sleep apnea. I was diagnosed 89 days after I retired. I got some bad INFO during my Tranisition Assistance class from a VA Rep saying that you have 1 year after you retire to claim something that is not in your SMR's. I took that as the gospel and knew I had plenty of time after I retired to get the sleep study done. Big mistake, but I did not know any better. So when I went to my first C&P exam (Apr 2007) for all my claims, I added sleep apnea and brought my sleep study to the appointment. I thought it was a slam dunk. Well the VA denied it because I did not have anything in my SMR's. So then I got with my VSO and asked for reconsideration. Got a letter from my Primary care manager on base, a few buddy letters, a letter from my wife, a letter from me and a pretty generic letter from the doctor that read my test. They denied it again saying it was all lay statements. (denied Nov 2008) So I went back to a sleep doctor for some follow ups with my CPAP machine and mask problems and he said he would write me a letter. I filed for the for NOD the end of Jan and he gave me a letter in Feb. I sent in the letter to add as new evidence. Here is the letter:

February 2, 2009

RE: XXXXXXXXXX

To Whom It May Concern:

I first saw Mr. XXXXXX in the office on 1-9-2009 for his problems with restless legs and obstructive sleep-disordered breathing.

He had a sleep study on 11-28-2006 performed in another facility and interpreted by another physician as being consistent with obstructive sleep apnea with an apnea-hypopnea index of 5.1 and lowest oxygen saturation of 90%. He did well in the laboratory on CPAP at 9 cmH2O, and a trial of CPAP at home was recommended.

Mr. XXXXXXX reports that his weight at the time of his sleep study was about 200 pounds.

He retired from the military in September 2006. At the time, he reports weighing about 195 pounds. Thus, he gained only about 5 pounds between his retirement and his sleep study.

Mr. XXXXXXX reports problems with abnormal sleepiness beginning around 1995.

In conclusion, given his longstanding history of hypersomnolence and the stability of his weight between retirement and his first sleep study several months later, I strongly suspect that Mr. XXXXXXXX had obstructive sleep apnea prior to his military discharge. In general, this is a chronically progressive condition that develops over years, in the absence of substantial weight gain.

Charles OrWells, Jr., MD

Diplomate, American Board of Sleep Medicine

CCW/JC

Sincerely,

Not the greatest letter, but the best I am going to get around here....trust me. The burden of proof is on me...I know that. But what am I supposed to do. I know alot of other people that have gotten approved with alot less. Just kind of frustrated about the whole thing. If I only knew what I know now!! My VSO says that VA will stick to "the law" and since there is nothing in my SMR's, they will continue to deny it.

Edited October 20, 2009 by joeyjoeyb

[Pete53]

Joey:

If you were diagnosed 89 days after you left than you should win. Include that evidence and ask for reconsideration is what I would do.

[12R3G]

My VSO says that VA will stick to "the law" and since there is nothing in my SMR's, they will continue to deny it.

Joey

If that were true, then my father in law would not be SC for hearing loss/tinnitis. He was denied 14 years ago because the SMR's did not show any hearing loss. duh. Now with buddy letters and an audiologist report documenting hearing loss and establishing the nexus (acoustic trauma-tanks), he's SC'd. STR didn't change, just his evidence.

You might ask the doc who wrote this if he would change "strongly suspect" to either

"at least as likely as not" -- 50/50

"more likely than not"--greater than 50%, but less than 100%

These are phrases the VA uses and asks the C&P examiners to use. You can even print a portion of the Clinician's Guide (used by C&P examiners) which defines these terms.

Good Luck!