Should I File A Nod?

[Guest rickb54]

On 26 June 2006 I received service connection for COPD secondary to Asthma. I was awarded 30% with an effective date of 3 May 2005.

I would not have been awarded COPD if I did not have a copy of my medical retirement board procedings which stated asthma with copd secondary.

When I was medically retired on 9 June 1986 I completed a VA Form 21-526E, titled "Veterans application for compensation or pension at seperation from service

" Under nature of sickness #6, diseases, or injuries for which claim is made, and date each began- I left blank

Under Nature of sickness #7 I entered SEE health Record.

I have reviewed this form over and over, the only typed information on the whole form is entered into #6

( the point is not what is there but that it was typed). #6 I had left blank and the va typed in the information.

This form was filled out under the supervision of some damn DAV guy. This guy told me not to put anything except see health record, I did what he said.

It seems to me if the va had read my health record, and reviewed my medical retirement paperwork, I would have been awarded COPD at the time of my retirement.

I want to know what the experts think, based on this information.

Should I file a NOD requesting an earlier effective date for the COPD, based on the fact that all I ever told the va in 1986 on the 21-526e was to see medical records. Wasn't it the va's responsibility to review my records and award me the COPD at the same time I was awarded the asthma, COPD is listed as a secondary condition right after the word asthma on the medical retirement paperwork, and in the medical records. Was it necessary for me to be specific, for COPD since I was not specific with at that time with any of my medical conditions.

Actually, the asthma was awarded on a CUE in 1988 , and the rating decision cites the physical evaluation board's report as evidence for the asthma, in fact it is the first think the va listed in the narrative as evidence. It stands to reason if the rater saw asthma (on the board's paperwork) then he had to see COPD.

What do you think? Do I have a case for NOD?

Or do I claim CUE and go all the way back to 1986, when the asthma was awarded?

Edited July 10, 2006 by rickb54

[Guest rickb54]

Vicki,

Thank you for your sound advice. I had not considered a De Novo review but that would seem to be the way to approach this. I also like the way you worded it, "I am issuing a formal Notice of Disagreement due to the fact that the VARO appears to have made a clear and unmistakable error (CUE) due to the following....

Also thanks to Adora for her info concerning CUE.

I am going to work on this because I really feel that I got shafted 20 yers ago on this one, and there may be some serious back pay coming if I can prove my case.

As I mentioned before, I won my claim for the asthma on CUE in 1988 two years after I retired. It seems to me that some at the VA must have seen the COPD secondary to Asthma those many years ago.

Anyway I have nothing to Lose.

[vaf]

That's the beauty of it, Rick, you don't have anything to lose!

I'm assuming you have your service medical records and your VA examination records from back then. If not, please get them. The other thing that would help you a lot would be an independent medical opinion from a civilian healthcare physician specialist in the areas of asthma and COPD.

Some discussion in Q & A form below, taken from http://goldcopd.com/download.asp?filename=8f_QandA.doc.

Question: How does COPD differ from asthma?

Answer: Both COPD and asthma are chronic obstructive airways diseases, have major symptoms in common, and both may occur in the same individual. Both asthma and COPD involve inflammation in the lungs, but the characteristics of the underlying inflammation are very different, resulting in very different responses to treatment. Whereas airflow limitation that occurs in asthma is often completely reversible, either spontaneously or with treatment, in COPD it is never fully reversible, and is usually progressive if exposure to noxious agents continues. In general, however, asthma develops in childhood, whereas COPD occurs mainly in adulthood.

Question: Does asthma lead to COPD? Is there a link between asthma and COPD?

Answer: There is undoubtedly an overlap between asthma and COPD. There is evidence that longstanding asthma can lead to changes in the structure of the airways and partly irreversible airflow limitation. Individuals with asthma who are exposed to noxious agents that cause COPD may develop a mixture of “asthma-like” inflammation and “COPD-like” inflammation.

[Guest rickb54]

Vicki, Adora and others.

I have all my active duty medical records, which state asthma with copd secondary to asthma, diagnosed in Oct 1985. I guess, At that time I was ignorant and did not know asthma and COPD were different diseases, or I didn't realize that I was even diagnosed with COPD, I was 32. In 2002 a va doctor, and then an army doctor told me I had COPD and must have had it for some time. It was then that I reviewed my active duty medical records and sure enought there it was in black and white and plain english. Twelve pages of nothing but Asthma with copd just before my medical retirement. So after I reviewed my records, I called my allergist, and asked him to review the records and write me a statement. He did, it said that it was more likely than not.... I then got letters from the VA doctor, and Army doctor who stated the same thing it was more likely than not. Finally when I went for the c/p exam the doctor wrote more likely than not. So I ended up with four opinions that state more likely than not due to service...

I submitted the claim, and a year later here I sit with 30% for the copd, based on a breathing test (PFT) taken in Sept 2005. Ironically, I have taked PFT in the past that show worse results than this did. that is why I am rated 60% for the asthma. Interesting enought I had to fight to get service connection for the asthma for two years after I was medically retired because of asthma. After two denials I finally got service connection for it when the va called CUE on itself. The va should have caught the COPD at the same time....

I have perfected my NOD, which basically states: request a de novo review concerning recenting rating decision, and my careful consideration that CUE exist bewteen this award and the award of asthma in 1988. Then I go on to explain that COPD should have been awarded at the same time as the asthma. I request one of two remidies.

I requesed the award state asthma with copd, with a 100% rating effective Feb 2001, the year my asthma was increased to 60%. I argue that if I was rated properly in 1988 then COPD would have been awarded at that time, and when I requested an increase rating in 2001, the va would have rated me 100% if done right. Then I request an effective date for the copd to be 1986.

The other request was award of COPD at 60% since my medical records show lower PFT than the one adminstered in Sept 05, and that in awarding copd the whole medical record should be considered and not just the one PFT, I also requested the award date to be 1986 when I retired from the army.

I have sent the nod in, so now I just wait and see. I think I will get the effective date of 1986, but I am unsure if the va will rate the copd higher than 30% or of it they will rate the asthma and copd as one.

Sorry for the long post.

thanks for eveyones input.

[Berta]

Rick- just my opinion but I would sure keep the CUE claim separate from the NOD on this decision.

The CUE involves a prior unappealed decision-

In that old decision they most surely used the wrong diagnostic codes on the rating- and therefore -since the DCs are part of 38 CFR-this is the Legal error they comitted at that time.

I have posted at hadit erroneous DC code CUE claims.

The NOD should focus on the recent decision, the CUE on the older and unappealed decision.

[callover007]

Hi Rick,

I'm not sure I understand your question. Are you trying to get a seperate rating for COPD and Asthma? If that is the case it would be pryamiding and only is awarded under one code. I have empyazema and COPD and it is rated together. I also ended up with lung cancer and sleep apnea. It is all rated under one code, supposedly the one with the highest rating. If you had a C&P PFT test that will probably be the one they use. I'm guess that you fall under the one rating go as I do. Check out CFR 38 under the respritory codes and it explaines the way it works.

Good luck

Callover

[Guest rickb54]

Callover007,

No I am not trying to get seperate ratings.That is part of the problem right now. I am rated for asthma 60% and COPD 30%..... first that makes no sense since both ratings are based primarily on PFT, so it would seem both would be rated the same; secondly I believe the va has made a mistake and should rate me 100% for the asthma with copd vrs seperate ratings. According to the specials rules the for respertory problems the va should rate me under the more serious disease and increase that rating to the next level....

I also agree that the va uses the PFT that is administered at the c/p exam, however they are supposted to consider the whole record when awarding a claim. Just as the cannot use one PFT to decrease a rating they should not be able to use one PFT to rate a claim, they should as I said consider the whole record to include all PFT's administered over the years.....