NOD Question on Effective Date

[Galen Rogers]

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 November 17, 2018 by Galen Rogers
updating reply notice

[Berta]

The problem with the CUE Dr. Bash raised is that his IMO was not in the record in 2008-

but the SMRS were!

 

He referred to the SMRs and found stuff that supported the nexus, as you stated.

I am thinking this is a CUE under 38 CFR 4.6.

If he found evidence to support service nexus in the SMRs, how come VA didnt in 2008?

"38 CFR 4.6 - Evaluation of evidence.

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§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6"

Personally I would file CUE first and then send in a NOD after that- Put Attention to and then the alphanumeric code on the decision-this code identifies  the last person who handled your claim.

I did not see the legal error stated well in Dr. Bash's IMO-

You should file it under auspces of 38 USC 5109, and then state it is a violation of 38 CFR 4.6 and send the copies of what Dr Bash found , that were in your SMRs.

Still-it might not fly as the disability must be ratable at least at 10% in the older decision.

No rating at 10 or over- no manifested altered outcome...IE no CUE.

It would help for you to  find the Schedule of ratings here,and compare that with any entries in your SMRs  for the disability nexus.

 

 

 

 

 

 

[Galen Rogers]

I was awarded service connection and 10% for GERD and service connection with 0% for my allergic rhinitis on my original claim in 2000 directly after I retired. The denied my claim for sinusitis. I had headaches listed on every physical for many years and fatigue a few times. The VA rater stated originally that my SMR evidence was not probative. My constant sinus problems was well documented in my SMRs and I basically lived on Pseudophed that sick bay handed out without requiring a prescription. (cold packs) ASKNOD originally advised me that I can't claim CUE on opinion of probativeness if they looked at everything. I think the real issue is that in 2008 the medical world was just starting to realize the links of different issues to OSA. I appreciate your advice and now I have to think about it and what step to take next.