Same NOD two decisions

[John1962]

Good day everyone.  I’m new to the site, so if this is already answered, please point me in the right direction.

If any of you reading this are new have a pending claim...Don’t give up!  It’s a long battle but well worth it.

I am a retired Navy E-8 with 21 years.  I submitted some claims in 2011.  Got to 30% and filed additional claims in 2013.  I appealed in 2015 and it has taken this long to get my DRO decision and I finally made it to 70% (and of course they used my C&P date of 2017). I received a my award in one packed that was specifically and only for sinuses.  I also received a second notification approving my sinus claim, but they said my tinnitus and gerd are not service connected.  My question is 1) if I appeal, will the VA still pay me at 70% while I’m still appealing tinnitus and gerd, and 2) I have no new evidence to submit, so should I even appeal? 

last question is I also received a non-service connected rating for complex sleep apnea.  It was never documented in my medical record, but my sleep dr. submitted a letter stating I likely had it all my adult life and is was just as likely I had it while I was in the military.  Should I continue the appeal in this case?

If I do appeal, will they affect any of my previous awards getting me to 70%?

[GeekySquid]

On 12/1/2018 at 6:17 AM, John1962 said:

I’m new to the site

welcome. ATC here. hows it feel to have this site show you as a new recruit? hehehe

you are likely to get a bunch of conflicting sounding answers to your questions specifically to if you "should" do something.

On 12/1/2018 at 6:17 AM, John1962 said:

Got to 30% and filed additional claims in 2013.  I appealed in 2015 and it has taken this long to get my DRO decision and I finally made it to 70% (and of course they used my C&P date of 2017)

what issues, what claims and what percent for each? did you get any SC @ 0% results?

 

On 12/1/2018 at 6:17 AM, John1962 said:

I received a my award in one packed that was specifically and only for sinuses.

this seems to say you are 70% for sinuses. is that right?

On 12/1/2018 at 6:17 AM, John1962 said:

 I also received a second notification approving my sinus claim, but they said my tinnitus and gerd are not service connected.

how in the hell after 21 years in the Navy is tinnitus not SC? did you spend those years in a Puzzle Palace Office?

Gerd may or may not be correct but if your Military STRs show you developed acid reflux etc in service, this can be challenged.

On 12/1/2018 at 6:17 AM, John1962 said:

 My question is 1) if I appeal, will the VA still pay me at 70% while I’m still appealing tinnitus and gerd, and 2) I have no new evidence to submit, so should I even appeal? 

1) until they issue a revision request to lower your rating you will get paid the same.

2) this really depends on what the reasoning in your DBQ and Award letter are for denying SC.

for example I am in the process of NOD'ing a denial to reopen a bilateral hearing loss claim from 2013. The C&P doc and rater ignored every enlistment except my first and used that to claim that I did have a hearing loss but it was not SC based only on reading that small section of my med records. They literally ignored/failed to see/chose not to use hearing tests spanning decades. This will end up as CUE or New and Material evidence. Depending on how obtuse the DRO wants to be. My final hearing test shows a 70 and a 75 db loss, one in each ear.

so my personal answer is YES file the NOD and fight the denial, your current rate will not likely be reduced during this time as there is a long process to reduce a rating. You don't mention if it is listed as P&T, is it?

if you can redact your personal info from the award letters and dbqs please do and upload them; The more information available the more potential help you might get from board members.

 

Edited December 2, 2018 by GeekySquid

[broncovet]

Go ahead and appeal any decision you dispute, with or without new evidence.  

You may decide later to provide new evidence.  For example, you may decide its worth it to get an IMO supporting your claim.  

Sometimes, an IMO can "fall in your lap", even when you dont buy an IMO.  In other words, you could be speaking with a Veteran friendly doc, and ask him if he thinks your (condition) is "related to service".  He may just say yes.  I have a VA doc who did just that.  He offered up a nexus statement, without me even asking, which I did not know about until I read my file and understood what a nexus was.  

When in doubt to "file a nod" or "not file a nod", always chose to file the nod.  Its very difficult to overcome not timely filing a nod.  You make it more difficult on yourself, raising the bar to the Cue level standard of review unnecessarily so, when you fail to timely file a nod.  

I can not tell you the number of Vets I have spoken with who regretted their failure to timely file a nod.  Dont even think of making the mistake of not filing a nod timely.  

[John1962]

Thank you all for answering my questions.  So let me amplify:

2011

SC Hypothorid 10%

SC residuals of partial collectomy resulting from diverticulitis 30%

SC hypertension 0% (weird because I’m on 3 meds but since I’m not knocking on deaths door, they rated at 0%) Filed NOD

2013

Filed for sinuses

Filed for tinnitus

Filed for GERD

Hypertension still got rated at 0%.  I didn’t continue with the appeals process.

2015 

GERD not SC NOD filed (Again, weird because I was prescribed Prilosec while on active duty)

Tinnitus  not SC NOD filed (significant hearing loss documented in my MSR while I was on 2 aircraft carriers.)

Filed for sleep apnea

Sinuses SC 0% NOD filed

2017

Complex sleep apnea not SC (sleep dr even provided a nexus letter saying it was as likely that I had it in service and most of my adult life) NOD filed

2018

Sinuses 50% effective the date of my C&P exam (Jul 2017)

Sleep apnea not SC

Tinnitus not SC

Its been a long road, but at least I made it to 70%. Still debating if I should appeal for sleep apnea and tinnitus.

[GeekySquid]

11 hours ago, John1962 said:

Still debating if I should appeal for sleep apnea and tinnitus.

in a word yes.

As I alluded above an E8 w/ 21 years would have to have been stationed in some Maxwell Smart "cone of silence" for their entire career to not be SC for their tinnitus. You did 2 tours on an Aircraft Carrier. I don't know your rate or NEC, but if you have tinnitus it is SC.

You definitely want to include a copy of Fast Letter 10-35 and its accompanying charts with your NOD /Appeal. I attached a copy. The long file name is for my records so i know where I got the document.

As for the SA. Contact the site/contractor/doc who did the sleep study. get everything from the study, notes, electronic readings etc.

Make the VA tell you WHY they denied. You will want to challenge the medical credentials of the individual, known or unknown, who provided the "negative finding" about your SA. If they don't have such a medical opinion, they have erred. You have a sleep study and a nexus letter. hopefully you have buddy letters. The opinion of a non-medical person does not counter the opinion of a fully qualified sleep doctor or any MD for that matter. SA is one of the areas that the Caluza triangle relies on lay information along with the  Sleep Study result. Only you and the people you sleep with know what happens on a nightly basis.

Go to the Veterans Law Blog run by Attorney Chris Attig. His articles post on here very frequently . He has a manual on how to prepare your Sleep Apnea Claim. I would suggest you consider getting that manual as well as his basic claims manual. or if you have like 500 bucks all his manuals.. they are on sale right now. BTW I don't get anything for telling you this.

by some odd chance was the denial for SA based on weight? if so they are implying, if not outright stating, that you are obese. That is a medical diagnosis, one that requires a doctor to flat out say it. even if that does exist in your record it has to be directly tied to you SA in a Dr.'s statement. If they did that you still have not lost, it would just put your SA claim in equipose and the tie always goes to the veteran by law.

from wayback machine state of tenn website Duty MOS Hearing Loss Probibility Chart-VA Fast Letter 10-35.pdf

[Buck52]

Welcome to hadit john1962 and thank you for your long term service to our wonderful country.

This may or may not been answers to your 2 Questions?

John1962 Quoted

''My question is 1) if I appeal, will the VA still pay me at 70% while I’m still appealing tinnitus and gerd, and 2) I have no new evidence to submit, so should I even appeal? '' 

Yes they will still pay you your 70% while you still have Appeals in, and if you win your claim for tinnitis they will go back to the date you first filed and pay the Adjustment in Retro Pay.

As for as evidence  for tinnitus that  is a subjective condition and is closely associated with hearing loss, you need to tell the Audiologist you have a ringing/humm werid sounds in your head, the audiologist will note this as tinnitus  once diagnose  then its just a question as if the rater will award it  usually they do.  but for evidence purpose  its a lot better if you can get a qualified Dr to opine your tinnitus is likely as not related to your?  .....whatever condition you have...like OSA or if you have hearing loss   ect,,,ect,,,

''last question is I also received a non-service connected rating for complex sleep apnea.  It was never documented in my medical record, but my sleep dr. submitted a letter stating I likely had it all my adult life and is was just as likely I had it while I was in the military.''

 Should I continue the appeal in this case? (Yes)

''If I do appeal, will they affect any of my previous awards getting me to 70%?''

No it should not effect it rather or not you get to 70%  if your 70%?

  however if your not currently rated at 70% and you need 10%  then yes if your denied for the condition in question  then your current rating will stay the same.

If you mean filing an appeal will it effect your current rating?  no it won't..

Usually when we have a S,C, condition  say at 60% and file  for another condition or Appeal...the only way it will effect your current condition is if you win...then of course they add that into your current conditions and make the rating  this is called combined ratings.

Use that letter  that your Dr written connecting your OSA to your military service and file for Sleep Apnea ,  and if you use a required prescribe C-pap machine as required for health reason   you should get S.C. AND 50% Rating for that..

Note: it would help if you can ask your Dr to write in his opinion that it is medically necessary that you use the C-Pap.

Should I continue to appeal in this case  (Yes)

When we have  S.C. Condition and have been rated for that condition and Appeal  the S.C. Condition will stay the same and you get paid for it until a decision is made from Appeals.

I hope this is not to confusing for you  &  good Luck with your Appeals.

Just a side Note Have you ever thought about Opt into the new RAMP ? of course that is certainly your choice.

Edited December 5, 2018 by Buck52

[Berta]

John, I am sure you know of CRDP - did VA mentio that in the last decision?

It looks to me that you do have a basis for CUE here under violation of 38 CFR 4.6.

"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."

I have had much success cueing my RO ( Buffalo) on that regulation-they failed to 'thoroughly and conscientiously" study my most probative evidence, many times, on many issues I have had with them.