Help With Nod

[Tomahawk]

So I have finally gotten around to writing up my NOD. Could some of you with more experience with this sort of thing read this over and let me know if its too much and I need to dial it back a bit, or if its okay to send as is. Thanks in advance.

Notice of Disagreement

The sleep apnea examination performed by XXXXX states "The veteran did not have any documentation of symptoms or diagnosis of sleep apnea during his military enlistment." This is false. I have in my service medical records documentation that I had difficulty sleeping. I also had problems with sinusitis which is a known issue with sleep apnea patients. To state that my service records show this as an "acute episode" is absurd. I specifically told the doctor in my exam that I had sinus problems throughout my military career. However I did not go to sick call for it as it is stigmatic to be a "sick call commando". I did what most Marines did and took over the counter medications and just dealt with it. Furthermore Dr. XXXstates that my sleep apnea is more likely than not related to the weight I have gained since being out of service. Had Dr. XXX actually examined my medical records he would have known this directly connects my sleep apnea do my current service connected disability. The plethora of medications I have been given over the years for my disability including Gabapentin, Amytriptyline, Naproxen, and Pregabalin all have weight gain listed as a side effect. Couple this fact with my inability to properly exercise due to my SC disability is more than a preponderance of evidence to resolve any reasonable doubt that my SC disability at least as likely contributes to the aggravation of my sleep apnea. On top of my SC disability having a major impact on my weight gain, the current medications I am on also exacerbate my sleep apnea. Currently the medications I take for my SC disability are Hydrocodone, Zolpidem Tartrate, Cyclobenzaprine, and Etodolac. All of these medications have an adverse effect on me in regards to my sleep apnea. In addition to these connections, my SC disability prevents me from sleeping any other way than on my back which also causes sleep apnea to be worse. Proof of this fact can be seen in the video taken by the VA while I was having my sleep study. The technician assured me that everyone moves positions in their sleep and that I would at some point move from my back whether I knew it or not. Upon waking from my sleep study the technician laughed and stated he has never seen anyone not move during a sleep study, and that I was the first. The reason for this is that my body is conditioned not to move in order to avoid added pain from complex regional pain syndrome. All of these factors show that whether or not my sleep apnea was present during my time in service (which I believe it was) it is still aggravated by my service connected disability as well as the medications I take to alleviate pain caused by the SC disability.

Dr. XXX also examined me for Esophagus and Hiatal Hernia. In his diagnosis Dr. XXX states " Nonsteroidal antiinflammatories are not known to cause GERD…." and that other factors contributed such as "his obesity." Considering I was not obese when in service which is when the symptoms were onset (as stated in my service medical records) this conclusion is ludicrous as a "cause". Proper examination of my medical files will show that the symptoms had onset of symptoms while on active duty. Coupled with the medications I was prescribed for my service connected disability, and the disability itself are all contributing factors to my esophagitus and GERD. By default this makes the condition service connected as symptoms were onset in service. However the issue was exacerbated due to my service connected disability resulting in my need to have surgery to correct it as the medication for the GERD was not helping. Any doctor who actually reviewed my complete medical file would be able to make this correlation, and be able to state with a certainty that my esophagus with hiatal hernia was at least as likely as not caused by, or aggravated by the medications for my service connected disability, and the disability itself.

I was examined by XXXXX for my Degenerative disc disease and herniated discs. In his conclusion he states "any relationship of this to his service, left foot, is purely speculative." Again I find this preposterous. You do not have to be a doctor to know the correlation between lower back pain and an abnormal gait. "Disability that is proximately due to or the result of a service-connected disorder shall be service-connected.

38 C.F.R. § 3.310(a) (2004). Service connection will also be

granted for aggravation of a nonservice-connected condition

by a service-connected disorder, although compensation is

limited to the degree of disability (and only that degree)

over and above the degree of disability existing prior to the

aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995).

"

Whether or not this doctor felt the desire to "speculate" on the cause of my lower back issues, it is beyond a reasonable doubt "aggravated" by the fact that I cannot ambulate correctly with or without the use of such aides as knee and ankle braces and a cane. I have documented issues of back problems in my service medical records. I also have documented in my VA medical records issues of lower back problems specifically caused by my losing balance and falling due to my service connected left foot. Nowhere does Dr. Steurer cite viewing my medical records in his diagnosis which would have given him beyond reason of speculation to deduce that it is at least as likely as not that my service connected left knee/left foot condition caused and/or aggravates my degenerative disc disease with herniated discs. There is a preponderance of evidence available to the VA in cases very much like mine that dictates abnormal gait being at least as likely as not the cause of lower back problems. For a doctor who specializes in C&P examinations to state he cannot make that correlation without speculating tells me that he does not have the medical training required to be in that position. The fact is the my spine issues are most likely secondary to my longstanding service connected lower leg disability and the accompanying abnormal gait, which likely damaged spine due to undue and abnormal stress. It is well known that people with lower extremity orthopedic problems often have abnormal gaits and these people often rapidly develop abnormal painful spines. The abnormal forces which are secondary to the gait problems places excessive stresses across the vertebral column, which in turn damages the spine.

Dr. XXXX also examined my right foot and cited that I have "claw toes left foot and hammertoes left foot". I have neither claw nor hammer toes. This statement is clearly erroneous and has no basis in fact. Viewing of my dozens of X-rays and other imaging can prove this false. The inaccuracy of this report leads me to believe that Dr. XXX dictated his findings about a different patient into my medical records, he did not thoroughly review my medical records, or that he does not have an adequate background in podiatry to diagnose my conditions.

In the document "Statement of the Case" dated 05/09/2006 page 6 states that "The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment…" Based on this definition and my medical care it is beyond a doubt that my left foot does not function under ordinary conditions of daily life. Furthermore page 7 of this same document goes on to state "Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance…" Considering I have not been able to run since being discharged from service, and my condition has gotten progressively worse with time to the point that I cannot ambulate without the aid of braces, inserts, and a cane I would beyond a doubt state that my left foot does not perform normal working movements with normal excursion, strength, speed, coordination, nor endurance. Thus by the VA's legal definition I have functional loss of use of my left foot. This is shown via the multiple Pain Management, and Podiatry appointments I have had throughout the years. There is documented in my VA medical records limited and painful motion, as well as evidence of disuse and atrophy. This should prove that I meet the criteria for functional loss of use of that foot with a rating of 40% which is the maximum for the loss of use of that appendage.

The VCAA dictates that the VA is required to assist a veteran in obtaining evidence necessary to substantiate a claim. Based on the incompetence of the doctors that examined me I feel that the VA has failed in its duty to assist. I am therefore filing this Notice of Disagreement and request a formal BVA hearing.

I am disputing that;

1.) Service Connection for RSD/CRPS of the left lower extremity should be the maximum 40% disability.

2.) Degenerative Disc Disease with herniated discs should be secondary to aggravation by SC left foot condition.

3.) Esophagus with hiatal hernia should be serviced connected with exacerbation by medication for SC left foot condition.

4.) Sleep apnea should be service connected secondary to aggravation by SC left foot and residual medications for its treatment.

[jbasser]

Way too much information. You need to keep it simple.

You also need a Doc to say the following;

I have examined the patient for OSA and have viewed the medical history. For example there is a medical report listed that the patient was treated for whatever whatever and the history shows a chronicity of treatment for this issue so it is my opinion that this condition had its onset during military service.

Iron clad, chain linking evidence with the current condition and history will win a claim.

J

[Tomahawk]

I understand that a nexus would be greatly beneficial. I however am not able to afford an IMO at the current time. As for keeping it simple, my NOD is fairly straightforward and simple in that it is stating what I am disputing and the reasoning as to why. Which boils down to the gross incompetence of the medical professionals the VA had examine me.

My question isn't whether there is "too much information". I really don't think that there is ever too much information especially when appealing to the BVA. I wrote a letter significantly longer than this when I appealed my initial 0% rating, and was then given a second C&P exam which lead to my 30% rating.

I also understand that iron clad chain linking evidence will ensure a win. Unfortunately I am not a doctor, and do not have access to a doctor outside of the VA. Therefore all I can do is use the "lay persons" clause in order to have them hopefully re-examine my files properly, and have me seen by more competent doctors.

My only concern with this letter is whether my calling the doctors inept and unqualified was too harsh and should I reword it better.

The letter itself just covers each issue, what their reviewer stated. How what they stated was incorrect, and that I am aware of the subsequent regulations that they should be using and are not.

[john999]

This NOD contains too much information. The RO won't read it. The NOD is the first step in the appeals process. I also think you should request a DRO Hearning before you go to the BVA. You should be able to get all your NOD on a double spaced single sheet. Everything that Jbasser says about medical statetments and links is also necessary. I know just how you feel about a horrible C&P exam. If your PCP can help you via more testing to refute what exam concludes that might help since you can't afford IMO. Can you afford to wait years and years and then be denied again?

[Tomahawk]

So I make my NOD 1 page. Then submit what I have here as a statement in support of claim? As for the RO not reading it, I dont really care. I dont want a DRO, I want a BVA hearing. And yes I can afford the wait.

[carlie]

I believe at this point, it is possible for you to by-pass appeals at your RO

and file a substantive appeal (Form 9) to move on to BVA level.

Perhaps others will chime in.

[carlie]

I understand that a nexus would be greatly beneficial. I however am not able to afford an IMO at the current time. As for keeping it simple, my NOD is fairly straightforward and simple in that it is stating what I am disputing and the reasoning as to why. Which boils down to the gross incompetence of the medical professionals the VA had examine me.

My question isn't whether there is "too much information". I really don't think that there is ever too much information especially when appealing to the BVA. I wrote a letter significantly longer than this when I appealed my initial 0% rating, and was then given a second C&P exam which lead to my 30% rating.

I also understand that iron clad chain linking evidence will ensure a win. Unfortunately I am not a doctor, and do not have access to a doctor outside of the VA. Therefore all I can do is use the "lay persons" clause in order to have them hopefully re-examine my files properly, and have me seen by more competent doctors.

My only concern with this letter is whether my calling the doctors inept and unqualified was too harsh and should I reword it better.

The letter itself just covers each issue, what their reviewer stated. How what they stated was incorrect, and that I am aware of the subsequent regulations that they should be using and are not.

Tomahawk,

Being able to find the money for an good IMO is an investment. I would think if you can afford around a 3-5 year wait

for a decision from BVA then you could find a way to afford or obtain an IMO.

If you feel your NOD is straightforward and simple - go ahead and submit.

Other's have posted it's way too much - I totally agree and feel it will not even be read in it's entirety.

Your first paragraph alone provides VBA with several reasons to continue a denial.

The VBA's opinion on weight gain is a lower caloric intake would benefit the claimant

and they have the move program and dietetic counseling to offer veterans.

Also, I do not think you have an accurate understanding of exactly what

"a preponderance of evidence to resolve any reasonable doubt" entails.

And the "lay person" clause you mention doesn't cover hardly anything that you have addressed,

in this NOD, to afford any probative value to the issues.

This NOD as lengthly as it is - I found to be an incredible mess from a point of adjudication.

I do not post this as a put down at all as I know you are working hard on this,

but in my opinion, much of nothing contained in this NOD will fly towards supporting a grant of benefits.

JMHO