Request for Reconsideration: Effective Date

[bolt_vet23]

Hello,

I wanted to run something by the group to get your thoughts.  I separated from the military in 2005 and had the pre-discharge exam completed before I separated.  I claimed sleep apnea as heoric snoring, but was not awarded service connection for it.  It's currently listed as a disability in eBenefits from the pre-discharge exam.  Fast forward 10 years and I was issued a CPAP by the VA after a subsequent claim was denied.  I submitted the NOD along with two IMO letters, one from a VA doc and one from a private doc, connecting sleep apnea to heroic snoring and allergic rhinitis (currently service connected).  

My issue is that during the pre-discharge exam, the doc asked if I had sleep apnea and I told her no since I didn't even know it what it was then.  No test was given since I responded no.  However, my question is can I request that the effective date go back 10 years since the VA did not fulfill their requirement to assist me in obtaining evidence and an exam?  The following is from the VA's regulations:

"The CAVC described the requirements as follows: [The VA must provide an examination or medical opinion when] there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service ... and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim."

Appreciate any assistance.

[Vync]

It looks like you are on the right track with the NOD and IMO's. If you can post the denial text (minus personal information) from when you got out and your recent claim, it can help us try and figure out if the denial was in error. It is actually pretty common for the VA to shaft us veterans. Things seem to have became a bit better over the past few years with DBQ and better quality control, but I had a super simple claim just a couple of years ago and the VA managed to screw it up.

"Heroic snoring" -- I like the way you put that. You win the Internet today!

[bolt_vet23]

Attached is a pdf with the VA's original response in 2005, subsequent claim in 2013/2014, and VA IMO letter.  The NOD is in progress and I'm pretty hopeful that it will be awarded, but I would like to get the effective date changed to 2005.  Appreciate your assistance.  

Original Claim.pdf

[FormerMember]

Two different claims. You filed for sleep apnea in 05 but presented no evidence other than snoring. Snoring is not a disease or injury as recognized by VA. To win that argument, you need a doctor to say what your neurologist did but then expand on it and say "And the reason why I believe his snoring is is a symptom of sleep apnea is..."  Bald, unsupported statements or assertions with no basis or argument in fact are not probative and will be given no weight." A Merck manual and treatises on the subject that connect snoring to sleep apnea are what is needed for you to win. A nexus letter or IMO is more than a simple statement that it is more likely than less likely. 

VA will ask their resident ARPN gal (VA Examiner) to write a lovely nexus that says it is not at least as likely as not because the neurologist has not made the sale. She, on the other hand, will take your psuedo-nexus and gut it to pieces now that you have laid out the cards. I suggest a good (private non-VA) sleep disorder specialist to get something on the books to support the correlation and why. 

The VA clinicians' and examiners' opinions are competent because they are qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Also, their opinions are credible based on their internal consistency and the examiners' duty to provide truthful opinions.  The Board further finds that the examiners' opinions are most probative because they considered the Veteran's medical records and discussed his medical history, provided unequivocal and conclusive opinions, and offered clear reasoning.    See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

 

[Vync]

They initially denied because "heroic snoring" is not a disabling condition, even if it was claimed as sleep apnea. However, your doc's IMO does indicate that snoring is a symptom of sleep apnea. Asknod is right. If you can convince the doctor to adjust the wording accordingly, it could help finish connecting the dots

Service connection is denied because heroic snoring, claimed as sleep apnea is not considered an actually disabling condition.

 

When did this sleep study occur? I assume it was back around 2005. Did you submit the results to the VA? I ask because I had a sleep study given by the VA and their neurologist said it was normal. Two years later I had second sleep study by a non-VA doc and he told me the VA doc was wrong and found the similar results on both.

You noted that you did undergo a sleep study, and were told the results were normal

 

One more thing. Check all of your service treatment records and medical records since for indications of being treated for daytime tiredness, hypersomnolence, snoring, etc... any of the key words which could help show symptoms not only started in service, but also continue to this day.

http://www.va.gov/vetapp14/Files5/1442435.txt

The above BVA appeal sounds similar to your case. I think you will find it is an interesting read. Please keep in mind that BVA rulings do not set precedence, but if you can quote one similar to yours, it might be able to help.

[bolt_vet23]

Thanks.  I should note that I also submitted another IMO  (approximately 75 pages) from a private doc.  I've attached the parts that I think are relevant since the rest are medical references.  I don't recall a sleep study prior to separation and can't find anything in my records stating that one was ever given.  The pre-discharge exam was performed before I separated so the VA had access to all of my military records.  I'm assuming that the VA either didn't look for the results or they never existed.  

The basis for my arugment is that allergic rhinitis was documented and diagnosed, complaints of snoring were made, but yet the VA did not perform a sleep study.  Below are the regulations to support my claim:

The VA did not perform a sleep study during the pre-discharge exam as required by the Veterans Claims Assistance Act of 2000 VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

 

AND WHERE:

Under the VCAA, VA is obliged to provide an examination when 

the record contains competent evidence that the claimant has 

a current disability or signs and symptoms of a current 

disability, the record indicates that the disability or signs 

and symptoms of disability may be associated with active 

service; and the record does not contain sufficient 

information to make a decision on the claim.  38 U.S.C.A. 

§ 5103A(d) (West 2002); McLendon, 20 Vet. App. 79.  

 

AND WHERE:

 

VA considers ALL THE EVIDENCE "in support," or in "relative equipoise"; which provides the Claimant prevails under the Gilbert v. Derwinski authority, as maybe presently codified:

 

"In determining whether service connection is warranted, the  VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in

either event...".  38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990)

 

                                        AND WHERE, IF:

 

Any reasonable doubt exist, it is resolved in favor of the Claimant, per VA regulations:

 

"Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran."  See 38 C.F.R. § 4.3. 

 

                                            AND BY:

 

Applying the proper "benefit of the doubt" rule(s) as provided in the Title 38 Statues:

 

"When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt."  See 38 U.S.C.A. § 5107(b).

Second IMO.pdf

[Gastone]

Not all people that snore, have SA. No SA DX in service or early on, hurts. Without the all important "Overnight Sleep Study" impossible for any Dr to opine with a definitive OSA, CSA or mixed SA DX.

A redacted copy of your SA C&P DBQ would be interesting. Any mention of your current SC breathing condition causing or aggravating your DX'd SA?  Redacted copy of your sleep study as well as VA Denial Decision might shed some light.

You may have to take a different tack here, your SA might be SC ratable as a secondary SC to "Allergic Rhinitis."  If that's the case, ED will be date of claim and/or DX.

Semper Fi