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      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

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brokensoldier244th

Denial Of Smc-K, Svc Connected For Ed Already

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Has anyone ever seen ED that was service connected, but denied compensation? My wife says I got a letter from the DAV that says compensation for ED was denied. I was granted service connection for ED in March on appeal, effective August of last year, rated 0%. There was no mention of SMC-K at that time in the award letter, so I filed a second claim specifically for SMC-K, with the basis of service connection being already granted for ED. Weird?

Why would the DAV send a letter if the decision isn't 'final'? All the other ones ive gotten from them were the same as the Basis letters from the VA, though, so my next question is WTH?

The letter (DAV) says:This letter is NOT intended to serve as your official notification from the Dept. of Veterans Affairs. You will receive an official decision from the VA upon completion of necessary administrative procedures. The VA reserves the right to modify the decision prior to your official notification.The DAV has reviewed the most recent VA decision concerning your claim for benefits. The VA has taken the following action(s):Entitlement to special monthly compensation based on loss of use is denied.If satisfied with this decision, no further action is necessary.

I just talked to the DAV and the VSO said that there was no evidence of loss of use since I have dependents. ???

I thought that loss of erectile power was considered for SMC-K for ED.

"Special monthly compensation may be paid for loss of use of a

creative organ, as a result of service-connected disability.

38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). Although the

term "creative organ" is not defined in the law or

regulations, the Office of General Counsel has held that a

"creative organ," as used in 38 U.S.C.A. § 1114(k), refers

to a procreative, or reproductive, organ. VAOPGCPREC 2-00.

In addition, where a veteran has loss of erectile power from

service-connected causes, he is also entitled to special

monthly compensation for loss of use of a creative organ. VA

Adjudication Procedure Manual, M21-1, Part VI, 11.25

(Change 85, April 4, 2002); see 38 C.F.R. § 4.115b, Code

7522. Therefore, although not specifically identified as a

"creative organ" in 38 U.S.C.A. § 1114(k) or 38 C.F.R.

§ 3.350, other legal authority clearly establishes that the

penis is a creative organ, for purposes of entitlement to

special monthly compensation."

So, if you have service connected ED, and have dependents, and take ED drugs, you may still be denied SMC-K, according to him. Heads up *ahem* .

CAS

Edited by brokensoldier244th

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Some RO at the VAMC is getting creative in denials. (again!) The only choice I can see is to NOD the denial.

The logic used (on the surface) is reasonable. However it may ignore the facts. Assuming the veteran has reached a "certain age",

It's very likely that any descendents were conceived well before ED related problems occurred. From the bare bones information provided,

I'd guess that this is the case. ED has an effect on the veteran's "quality of life" more than the existence of descendents. After all,

descendents are possible with ED. (Details omitted)

Edited by Chuck75

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I'm almost 35. My ED symptoms have gotten progressively worse since 2002, stemming from a degenerative back injury to the lower lumbar spine. My ED decision states that there is the possibility of impingement of the nerves controlling that aspect of things, and that was the basis for the granting of ED. My last daughter was born with some considerable work in 2008. I filed for ED last year.

Man, I don't want to have to NOD this, too.

Are they going to be this much of a PITA for my depression filing as well?

CAS

Some RO at the VAMC is getting creative in denials. (again!) The only choice I can see is to NOD the denial.

The logic used (on the surface) is reasonable. However it may ignore the facts. Assuming the veteran has reached a "certain age",

It's very likely that any descendents were conceived well before ED related problems occurred. From the bare bones information provided,

I'd guess that this is the case. ED has an effect on the veteran's "quality of life" more than the existence of descendents. After all,

descendents are possible with ED. (Details omitted)

Edited by brokensoldier244th

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Wait until you receive the official notice from the VA, before you get all worked up. Anything now is premature!

pr

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Premature. :-)

CAS

Wait until you receive the official notice from the VA, before you get all worked up. Anything now is premature!

pr

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    • Howdy all,

      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

      a. Medical visit dated 24 Feb 76 for problem sleeping and depression.
      b. Physical exam dated 24 Jan 79 listed frequent/severe headaches" dizziness, and
      nervousness.
      c. Physical exam dated 07 Nov 83 listed frequent/severe headaches.
      d. Physical exam dated 16 Jan 85 listed frequent/severe headaches.
      e. Admitted to hospital 05 Aug 86 for chest pains and anxiety.
      f. Medical visit dated 14 Jul 87 for problem sleeping and morning confusion.
      g. Physical exam dated 25 Feb 88 listed dizziness.
      h. Physical exam dated 07 Oct 91 listed frequent/severe headaches
      i. Physical exam dated 25 Aug 93 listed headache.
      j. Hernia repair surgery dated 22 Ang 94 surgeon had to insert devices of some
      kind in each of my nostrils that went down into my throat to keep rny airway
      open and stop my disruptive snoring.
      k. Physical exam dated 29 Sep 99 listed frequent/severe headaches.

      So could you all take a look and let me know what you think.

      Redacted VA NOD SOC 04-09-2020.pdf
      VA 2008 Denial of OSA Redacted.pdf
      VA Claim Decision Ltr 08 Nov 2018 Redacted.PDF
      • 3 replies
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