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Nod Help On Evaluation


deville905

Question

I would like someone to read my NOD I've created with there format. I was by rater per call to have my primary physician fill out DBQ which he did. Grade this attachment for me and any suggestions would be helpful. This is just one section.

Notice of Disagreement

1. Service connection for sleep apnea: Your office continues to state not show an event, disease that my service records does or injury in service, but it should. I have stated previous of times that I went on sick call for snoring, throat and tonsils hurting. If you don’t see it in my medical file, they are incomplete and or not accurate. I recently found two individuals that I served with and one of them was my roommate from Korea. My claimed moved so fast, I don’t believe it was ever taken into consideration by the rating department or officer. My C&P exam was conduct at VA by physician assistant Lxxxx on Oct 3 2013. She never asked me any questions and made only two statements. (1) Hypertension does not cause sleep apnea, but untreated sleep apnea can cause hypertension but not the reverse. (2) Then she commented on the number of Lay Statements that was currently in my file, in which your office never stated one from Lxxxxxxxxxxxxx (step daughter). In physician assistant Leoras Rationale or justification of stating (less than 50 percent probability) incurred in or caused by the claim in-service, injury, event, or illness only addressed by secondary of sleep apnea to hypertension. All she stated was the evidence of what sleep apnea is. On July 18, 2014 at 09:15 I received a call from your claims office to answer any questions I had from my request on I.R.I.S. She told me that my sleep apnea case was denied because of the statement the doctor had made from my C&P exam, but in fact as I mentioned before concerning the exam and performed by a physician assistant and not a doctor. I asked the rater, how can the physician assistant answer questions without asking me any questions. Did physician assistant have any medical evidence for her medical opinion? The weight of a medical opinion is diminish where that opinion is based on an examination of limited scope and the evidence is not stated or fails to explain the bases of her opinion. Regulations require that any opinions rendered be supported by a rationale for the opinion. Bloom v. West, 12 Vet. App. 185, 187 (1999)

Physician assistant Lxxxxxxxxxxx responded to a letter that I sent concerning a job with regulatory conditions set by FMCSA. Then reading your response from the examiners answers (The examiner also stated that you are able to work in any occupation that does not have regulatory restrictions preventing individuals with severe sleep apnea corrected by a CPAP machine and sleep apnea does not impact your ability to work. PA Lexxxxxxxx’s answers contradict themselves because FMCSA’s non qualifications is based on mild to severe obstructive sleep apnea and conditions in upper respiratory to include (asthma), and her response was to ask for a waiver. She received her information from a frequently ask question section but failed to read in entirely, because severe obstructive sleep apnea nor does asthma have a waiver. When PA xxxx noticed my prostate cancer, she told me to send in a disability questionnaire form to your office, then your office ask why did I send it in. You indicated that by a series of question marks.

Lay Evidence: Competent lay evidence is defined as any evidence “not requiring that the proponent have specialized education, training, or experience,” but is provided “by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.” Competency is a legal concept which determines whether the lay evidence is admissible before VA as the trier of fact; credibility is a “factual determination going to the probative value of the evidence to be made after the evidence has been admitted.”

Prior to the enactment of the Veterans Claims Assistance

Act of 2000 (VCAA),11 the general trend was to focus primarily upon medical evidence when adjudicating a claim. Cases such as Hickson v. West12 stated that establishing service connect generally required “(1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability.”13 As a result, lay evidence played a limited role in the development and analysis of medical nexus evidence. Medical examiners were likely to discount a veteran’s lay statements as to the history of a claimed injury or disease on the grounds that service treatment records did not document the claimed disorder and/or because they found that there was a lack of medical documentation generated since the veteran’s separation upon which it could be determined that the claimed disability was “at least as likely as not” related to his or her service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Contrary to [CAVC’s finding], the relevance of lay evidence is not limited to the third situation, but extends to the first two as well. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a Department of Veterans Affairs (VA) examination is inadequate where a VA examiner ignores a veteran’s lay statements of an injury or event in service unless VA expressly finds that no such injury or event occurred). Competent and credible lay evidence of record which establishes that the Veteran suffered from symptoms of sleep apnea during service, as well as the competent lay evidence of continued sleep apnea symptoms since service, the Board finds that the lay and medical evidence of record is sufficient to establish a medical nexus between the Veteran's sleep apnea and service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)

Edited by deville905 (see edit history)
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You raised some good issues and used some good citations.


"I have stated previous of times that I went on sick call for snoring, throat and tonsils hurting. If you don’t see it in my medical file, they are incomplete and or not accurate."

Do you have your own copies of your SMRs to send to them, highlighting with a magic marker ,those specific entries?

" I recently found two individuals that I served with and one of them was my roommate from Korea. My claimed moved so fast, I don’t believe it was ever taken into consideration by the rating department or officer. "

Did they actually prepare Buddy statements and did the VA have them,prior tyo the decision, but ignored them completely?

Does your 201 file ( Personnel file) show anything to indicate you were late for duty or sleepy while on duty etc etc...?

You unfortunately might need an IMO from a real doctor to knock down the C & P exam. The IMO doc will need to see your SMRS and 201 file as well.



"She received her information from a frequently ask question section but failed to read in entirely, because severe obstructive sleep apnea nor does asthma have a waiver."

This is the second time here in a month that a VA examiner got their info to deny a claim from the internet. (I assume that is what the 'ask question' section was from).

So much for her medical expertise on your condition.

I suggest you find the same article she used and then find more articles from good internet sources that could rebutt her opinion.

If you google part of her statement from the article she used, it will probably pop up.

When a real doctor uses any articles, treatises and abstracts etc from the internet, and they never rely on just one, (although they usually use up dated texts they have instead) they use the best internet medical links they can find,to support a medical rationale,.

When a VA doctor does it, I think they just seek the best one they can find quickly, that they feel could deny a claim.

And a brief internet statement is not a substitute for any health care provider's 'medical rationale' at all...

You sure might be able to knock this C & P down so much they have to give you another one...but it might have the same results.

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Berta,

Thank you for the compliments and kind opening words. It's always better to have someone to proof read your work, and to make some well needed suggestions.

No, I don't have a completed copy of my SMR and I kick myself in the XXX for not being better pro active in retaining a completed copy, so if they don't see it I don't know i'm just blowing in the wind.

Yes, both individuals wrote statements for me and I feel that VA ignored them completely but listed them in evidence received. Both of the statements were on point with my roommates being very strong, and in detail.

I also see my mistakes in the incomplete thought pattern and will fix it.

I do remember getting in trouble a few times on the Army's famous article 89 (Appointed place of duty)

Inside my denial packet was a Sleep apnea disability benefit questionnaire and was told by Nashville, TN rater to have my primary care physician fill out and attached to NOD, which he filled out and I will include in this packet. My medical doctor stated that based on all the evidence my OSA occurred while on active duty.

When I read her rationale for her decision she just listed the symptoms of OSA, which just blew me away.

Would it be too much to post the questionnaire from C&P with personal information removed or blackened out, and also post the counter questionnaire filled out by my medical doctor?

Once they receive my NOD could they re-investigate and then rate fairly or will they send it straight to the appeal process?

If I raise a reason of doubt, which I think I have done do I need more evidence on my NOD for OSA or wait for the VA Form 9 to strengthen my case at that time?

My medical file arrived today and going through it, my claim should have been approved when I first filed. I will continue to read and put this in another order or just add deeper into it. I'll post back in a few days!

I found her two internet sources that she used and she didnt even change one word but put her signature block on it as if she thought of the systems in that detail order. Isn't that plagiarism by a physician assistant?

Thank you again for reading and your suggestions

Edited by deville905 (see edit history)
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Can anyone tell me is it better to add all of your evidence to your NOD or just state why you disagree with the findings? Also since the VA did not want to see my worn cloths items and devices at the time I went in should I take photos...and what would be the best way to add that in your as evidence Exhibit/item number???? Just thinking if I give all evidence in my NOD maybe I can get approve or maybe I should save evidence for the appeal. Need some help first… NOD.

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State why you disagree and send all information needed to substantiate the claim. I wish you good luck.

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Have you filed a NOD yet? I recently had the pleasure of attending my 1st and only NOD DRO Review Hearing, 6/27/14. Been waiting since 2010. Had a 2nd NOD Hearing for IU pending since 09/2012. Letter from VA didn't say which hearing I was having. I went prepaired to address both NODs. I had also filed a formal request for an "Informal Conference," in an attempt to find out what was going on with my appeals, other than the "Appeal Pending No Date Available" status on my E-Ben claims sight.

At the Hearing, I asked the DRO about my request for the informal conference. He said my 2010 NOD Formal Hearing, recorded and transcribed was scheduled for that day, but if I wanted an informal hearing, no problem. He said if anytime I wanted to go on the record, he would start recording and I could start my recorder also. Then I could wait for his decision and about 1 1/2yrs for the transcription of the hearing. After agreeing on the Informal hearing, he advised me we could take care of both my appeals on that day. My understanding is that at a "Formal Hearing," the DRO makes an opening statement, then it's up to you to present your "NEW Evidence" that wasn't available to be considered at the time of your Denial. Even if you mailed it to the VA, be sure to take all of it to your hearing.

During the ensuing discussion, the DRO said how important the VA DR DBQ's were. Good lay evidence helped, but it was the Dr's DBQ statements indicating "More Likely Than Not," that sealed the deal.

Good Luck

Semper Fi

Gastone

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All that is require of the initial NOD, file telling them that you disagree with their decision dated --/--/----.. You will recieve a letter confirming reciept of your NOD. The letter will ask you how you wish to proceed, Local with DRO or to VA Court, I think they give you 60 days to reply.

The above is the minimum you have to do. I put everything in my 1st 2010 and 2nd 2012 NOD Filings. On the original filings, I specifically stated what I agreed with and what and why I disagreed on other issues. I also stated on all correspondence regarding the NODs that I was requesting a "DRO Review with a Person Hearing." I would advise you handle this yourself, the personal hearing request is of vital importance to your ultimate success. Remember, You must supply "New Evidence" that wasn't available for the Denial Decision. VA DBQ's are great evidence. Expect about a 2yr+, wait for your hearing. Semper Fi

Gastone

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Gastone just want to say thanks for all of the information this makes more sense to me...state the full case and see how it falls. I think this will give me more time if I need additional evidence too.

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USVET: I had great success with the DRO Hearing process, 06/27/14 awarded IU and SMCK. I opted for DRO Informal Hearing, non recorded and transcribed. The DRO told me it could take up to a year or more to get the transcription of the formal hearing. In my informal hearing, the DRO and I sat and discussed my "New Evidence" like a couple guys over coffee. He informed me, had I gone with the "Formal Hearing," he would have just stated the VA Reasons for initial denial and then it would have been all me, presenting my "New Evidence." there would have been no back and forth questions and answer. He also said that my choice of informal made it possible for him to address both my 2010 and 2012 NOD.s. When we were done talking (aprox 40min), I knew exactly what his decision on both claims was. My hearing was scheduled for 8am, we conclude at 8:45 and my VSO called me at 3:30 to advise me he had a copy of the DRO Award on his desk. I recieved the Official VA Award Letter aprox 07/18 and 08/01 comp check was at 100% rate.

Get your NOD requesting a Personal hearing in ASAP, send Certified Return Receipt or better yet hand deliver to RO if possible. They will date stamp and make a copy of your NOD for you. Then get busy on your Evidence. Get a copy of your C&P exam from your VA Hospital Medical records and file FOIA request for a complete copy of your C-File.

Semper Fi

Gastone

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Gastone thanks on the insight your information and guidance has shad a lot of light on the things I need to do. Again thank you for all that you do.

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