hypertension Nod Help On Evaluation

[deville905]

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 August 13, 2014 by deville905

[Gastone]

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

[usvet]

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.

[Gastone]

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

[usvet]

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.