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NOD Question on Effective Date

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Galen Rogers

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Howdy all. I have a partial success. My OSA (sleep apnea) was just approved secondary to service connected (SC) GERD, My left knee problem was approved secondary to my SC right knee, my Tinnitus approved SC at 10%, and I have several in deferred status waiting on re-check C&P Exams (they did not like the first ones they got I guess). They disapproved my lower back problem as secondary to the SC right knee (caused a fall) . So I know I need to get a second opinion from a neurosurgeon on that one to support a NOD. The other NOD I want to submit is for the effective date of the OSA . I submitted my first claim for it back in 2008 and it was denied. I did not know about gathering the various support letters from previous shipmates or submitting medical articles that supported my claim. I trusted my REP (AMVETS) and followed his lead. My claim then was modified to say the OSA was secondary to Asbestos exposure. My own personal statement said that it was not. I did have SC Gerd then but my Rep and the VA did not connect it then. So I want to do a NOD on the approved effective date requesting it be back dated to the original claim 2008 date. Is the NOD the proper way to do it and will it stop the updated compensation from starting? My updated claim status is below.

Disability Rating Decision Related To Effective Date
plantar fasciitis, bilateral   Deferred    
allergic rhinitis 0% Service Connected   03/01/2000
mitral valve prolapse   Not Service Connected    
thoracic outlet syndrome, left upper extremity 10% Service Connected   10/26/2001
gastroesophageal reflux disorder 10% Service Connected   03/01/2000

obstructive sleep apnea 

50% Service Connected   12/29/2017
complex tear of the right knee medial and lateral meniscus, popliteal cyst, and osteoarthritis (previously rated as surgical repair of medial meniscus tear, right knee) 10% Service Connected   10/01/2001

lumbar degenerative disc disease, disc rupture 

  Not Service Connected    

left knee anterior cruciate ligament rupture with tearing of the medial meniscus with osteoarthritis 

10% Service Connected   12/29/2017
sinusitis with retention cyst   Deferred    
thoracic outlet syndrome, right upper extremity 10% Service Connected   10/26/2001
hemorrhoids   Deferred    
asthma   Deferred    
irritable bowel syndrome   Deferred    
cervical spine degenerative disc disease   Deferred    
tinnitus 10% Service Connected   12/29/201
Edited by Galen Rogers
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If  the VA had evidence that the OSA was ratable at least at 10% in 2008. you would have a potential basis to file CUE on that decision for a better EED and more retro.

Can you scan and attach here the 2008 OSA denial? (Cover C file #, name,  prior to scanning it)

 

 

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Hi Berta. Here is my original denial. On this new claim I provided a NEXUS letter from Dr. Bash. I did not submit the new claim as a CUE but Dr. Bash stated it was CUE in his NEXUS letter. The VA actually Put in a response to his CUE statement in this new response saying there was no CUE as a separate item in the VA Decision letter. 

VA 2008 Denial of OSA Redacted.PDF

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Gee, there  is nothing in the pdf to indicate CUE unless they did not review the medical records from the 2 private entities.Dd those records establish OSA?

Can you attach their most recent decision, with the reference to Dr Bash and CUE?

Yes Buddy statements and spousal statements can be a big help on this type of claim with inservice symptoms.

They did say they reviewed the SMRs...have you reviewed them as well?

It is often a good idea for vets to get not only their SMRs but copy of their personnel records.Those records might show being tired on the inservice job, oversleeping, being late , things like that  that could support a OSA claim.

But CUE depends on established medical evidence in VA's possession at time of alleged decison being CUed.

Dr Bash is good at seeking CUE- he saw something there that might have warranted it.

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Dr Bash based the CUE on the fact that I was service connected for GERD and Allergic Rhinitis (AR). There are various medical articles  that link OSA to GERD and AR. There ared even a few VA appeal results that  approved OSA due to these links and articles. All of this evidence was available prior to my claim. The VA had the appeal results in their possession prior to my claim. With that being said, ASKNOD recommended I reopen my claim and then do a NOD on the effective date if approved. Hi opinion was that a CUE was a very slippery slope in most cases that are somewhat vague like this one. I'll attach the VA decision letter I just received yesterday for you to look at. Also one of the VA Citations that approved someones OSA based partially on GERD is Citation Nr. 0721743 Decision Date: 07/19/07.   

VA Claim Decision Ltr 08 Nov 2018.PDF

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I agree with what Asknod suggested.

(I didnt see any mention of Dr. Bash at all in the download of the recent decision)

The VA might well give you a decision on the NOD that could open the door for CUE.

I am assuming that the evidence list for both claims is correct but when did they get Dr. Bashs' IMO?

 

 

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I submitted Dr. Bash's NEXUS Letter with my claim. I also referenced it in my sworn statement. So I will try the NOD and if approved I'm good. That would back date the effective date to the original claim. If the NOD does not work then I will appeal up the chain and get an updated NEXUS from another reputable medical professional.  Attached is Dr Bash's IMO.

Dr Bash VAE OSA NEXUS OPINION ICO Galen Rogers 2018.docx

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