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John1962

Same NOD two decisions

Question

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%?

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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.

 

 

 

 

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Consider these 2 choices:

1.  You timely appeal.  Later, you decide to discontinue your appeal (for whatever reasons, tho I can not think of any).   You can simply withdraw your appeal.  

2. You dont timely appeal.  Later, you decide this was a bad idea, and now, you are fighting to try to prove CUE.  You just made your appeal much more difficult to win.  

    Best option:  Number 1.  Its easier to "undo" than number 2.  IN short, appeal.  I can not think of a single Vet who has regretted appealing.   However, I have read many Vets who regretted not appealing, including myself.  

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PS-if the VA prescribed NSAIDs to you for a signifiant period of time, for a SC condition , the VA will award the GERD as secondary to the VA presrcribed NSAID use.

"The AOJ denied service connection for GERD on the basis that there was no current disability. Thereafter, a March 2011 VA clinic record reflects that upper gastrointestinal (GI) series testing was interpreted as showing mild GERD. Thus, the record reflects that the diagnosis of GERD provided by the private examiner in April 2009 has been confirmed by upper GI series testing. The April 2009 private examiner opined that the Veteran’s GERD was caused by his NSAIDs use. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran manifests GERD which is proximately due to NSAIDs used to treat service-connected disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the claim of entitlement to service connection for GERD is granted."

https://www.va.gov/vetapp18/files9/18139472.txt

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Ms berta good catch on the GERD Claim.

..I was going to say something about that but I forgot to...  you   you covered it  Great Information for this Veteran Ms Berta.

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