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Should I appeal NOD Decision on Earlier Effective Date


Galen Rogers
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Question

Howdy all,

The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

a. Medical visit dated 24 Feb 76 for problem sleeping and depression.
b. Physical exam dated 24 Jan 79 listed frequent/severe headaches" dizziness, and
nervousness.
c. Physical exam dated 07 Nov 83 listed frequent/severe headaches.
d. Physical exam dated 16 Jan 85 listed frequent/severe headaches.
e. Admitted to hospital 05 Aug 86 for chest pains and anxiety.
f. Medical visit dated 14 Jul 87 for problem sleeping and morning confusion.
g. Physical exam dated 25 Feb 88 listed dizziness.
h. Physical exam dated 07 Oct 91 listed frequent/severe headaches
i. Physical exam dated 25 Aug 93 listed headache.
j. Hernia repair surgery dated 22 Ang 94 surgeon had to insert devices of some
kind in each of my nostrils that went down into my throat to keep rny airway
open and stop my disruptive snoring.
k. Physical exam dated 29 Sep 99 listed frequent/severe headaches.

So could you all take a look and let me know what you think.

Redacted VA NOD SOC 04-09-2020.pdf VA 2008 Denial of OSA Redacted.pdf VA Claim Decision Ltr 08 Nov 2018 Redacted.PDF

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From what I’ve read, the VA is correct.

You first filed your sleep apnea claim in 2008 and was denied. By letting the decision pass the one year mark (without appealing), the 2008 decision became final. You then opened another sleep apnea claim in December 29, 2017 and was granted service-connection. The BVA can only give retro pay back to the 2017 claim, not the 2008.

You voiced misunderstandings of the appeals process but this not a valid excuse in the eyes of the law.

I am not a lawyer (IANAL), but I think you would need an IMO stating you had symptoms of sleep apnea that was apparent in 2008.

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You would have to appeal to the BVA for an effective earlier date. At the VARO level, in my experience, it seems the RO just overlooks strong probative evidence that are in the veteran’s favor.

I will give you an example of the buffoonery of the VA: I filed a claim in 2018 for migraines, depression, and other contentions. I was diagnosed with migraines and depression and treated for both during my last two years of enlistment.

Got out of the military and continued receiving treatment for migraines and depression. Had a VA neurologist diagnose me with intractable migraines, and a VA psychiatrist diagnose me with major depressive disorder. My claim was denied because of an unfavorable C&P exam from an NP and a psychologist. 

Filed a NOD in late 2018.

I found representation, and submitted an IME w/IMO from a board-certified specialist as evidence. Was again denied in March, and now my case goes before the BVA.

Luckily, at the BVA, all evidence will be considered.

Edited by Hucast21
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Whoa!!!!

    Yes, you were denied in 2008, but the 2008 decision did not mention the possibility of secondary SC (Secondary to your GERD).  The VA has to consider all manners of SC, its not necessary for THE Veteran to understand the differences between primary, Secondary, or presumptive Sc.  Instead, the VA should view the evidence and award based on evidence, not on a test of your knowledge of VA benefits in applying for the "right" Sc theory.  

    Keep in mind the effective date rules.  The general rule is the effective date is the "later" of the facts found (when your doc said you had OSA), and the date you applied.  It does not say the date you applied for SECONDARY SC because you failed the test of knowing all the differences between various types of SC.  

   You aren't "quite" out of the woods, yet, tho.  When were you SC for GERD?  That can be important, its gonna be a tough sell that your osa was secondary to a condition that isnt servcice connected.  

   In short:  File a Nod disputing the effective date.  It would take a review of your files to know, but "when" did Dr. Bash suggest your GERD caused sleep apnea?  I would be shocked to think Dr. Bash would hornswaggle you and not put an effective date or date in which he opined your sleep apnea began.  

   I suggest "not" dealing with the VARO, (HLR or SCL)   but instead go right to the BVA.  I suggest you do a great job of your nod..after review of your files, AND a review of the rules for effective dates.   See if any of these rules apply to you:  

1.  Was this an increase?

2.  Did you just get out of servicee within a year?

3.  Did you submit new evidence to a pending claim? See 38 CFR 3.156

4.  Did the VA provide notice of your rights to appeal with the 2008 decision?  It may not have became final, because you havent gotten your decision until you have received a notice of your appeal rights.  Why do you think the VA put all those forms in your decision?? (no, they dont always do that, they do forget).  

The above factors can influence your effective date, but read this over to see if any of the others apply, too.  

https://www.law.cornell.edu/uscode/text/38/5110   

I have won each EED claim I ever filed, eventually.  I finally gave up on an eed for mdd, BUT, eventually won it for tdiu anyway, so it amounts to the same thing.  I can tell you the VA would rather give up their first born child than to award an earlier effective date, you always have to fight them tooth and nail for that.  

Remember, the VA has 600 lawyers running around who's job it is to make sure you get the least amount of benefits possible.  EXPECT these lawyers to say stuff like, "naw, you dont deserve an eed..the 2008 decision was final". 

Not necessarily.  Remember, the VA has a conflict here.  They changed course:  They said it wasnt sc in 2008 but it reversed and became sc in 2018.  How can that happen?  Answer:  It probably cant.  You didnt walk into a doctors office and he put a device on you which alters the etiology of your condition rendering it Service connected when it was previously not sc.  The cause of your sleep apnea did not change.  However, doctor opinions can change and so can RO decisions.  

You may have to overcome finality, but VA helped you on that..remember, they sc'd you for sleep apnea.  The only issue is when.  Go by the effective date rules..the VA will try to deny, but they will have to follow the rules.  

Dont even think of not appealing this.  You will likely regret that later.  

Edited by broncovet
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