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Phoenix

Which Way To Go...new Evidence Or Nod?

Question

Greetings all,

I am reposting the following here in the hope that I can gain some insight in what to do next.

I had a service connected claim of obstructive sleep apnea with CPAP which was denied because the VA found no evidence in my SMR.

I am a tad miffed because in my service medical record shows my diagnoses of Obstructive Sleep Apnea and to start CPAP therapy in September 2007, but this wasn't even referred to.

I had my CP exam in October 2008 and showed the doctor my SMR with the diagnoses and sleep study results listed on it, but not the actual sleep study. The doctor stated that I had subjectively reported I had sleep apnea but no evidence was given that I had it.

Now my question is should submit a letter of new evidence that includes copies of the overlooked medical records, my actual sleep study refered to in those records, my reciept from the CPAP machine I was issued, my last sleep study on Nov 2008 showing I still have sleep apnea and the print out showing my treament compliance or should I send in a Notice of Disagreement? The whole claim has not been rated yet as they have deferred one decision.

As a side note, thedeferred rating of one of my conditions left me right at 40%. Any guidance on this?

-Phoenix

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Here is what I would do.

I disagree with the decision dated_______ that denied my claim for sleep apnea.

I was diagnosed in service and issued a CPAP machine and still have the condition to this day.

According to the regulations the sleep apnea is service connectable if is was diagnosed in service and a current treatable condition.

The use of a CPAP machine warrants a 50 percent rating per the regulations.

Please reconsider the denial and correct this decision and apply the proper rating criteria for this claim per the title 38 cfr 4.97.

4.97 Disorders of the respriroty system. Sleep Apnea.

6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):

Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy 100

Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine 50

Persistent day-time hypersomnolence 30

Asymptomatic but with documented sleep disorder breathing 0

J

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So that would be a notice of disagreement. I was advised to enter new evidence based on the fact that I had filed in August 2008, 6 months ago which puts me in the one year limit for submission of evidence towards a claim and should force them to reopen the case file. Can they legally ignore/overlook evidence of a disease that was incurred in service like they have?

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They are oblivious to your case and your cause as they blatently are ignoring your claim.

They need a kick in the backside. The NOD does that. It tells them you are not fooling around and you know the regs. It also tells them to quit jerking you around and that you are not stupid as they seem to stereotype most of us Vets when they do this rediculous crap such as deny a claim such as yours.

J

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Thank you for all the help! Here is what I went with.

On December 9, 2008, a decision was rendered to deny my claim for Obstructive Sleep Apnea with CPAP based on incomplete or overlooked evidence taken from my service medical records. I am submitting new evidence that was not included in my Service Medical Records or was overlooked. The decision stated that on or about 19 Jan 2005, I was referred to ENT but no follow up was done.

The overlooked evidence indicted in my Service Medical Records is as follows, copies of these records have been provided:

A1. On 02 APR 2007, I was seen at NNMC Bethesda, MD at the Walter Reed Sleep Clinic for snoring, excessive daytime sleepiness, multiple awakenings at night and symptoms suggestive of Obstructive Sleep Apnea (OSA). A polysomnography/split study was ordered. It was also noted that I had been a shift worker for 20 years which has been found to cause or aggravate OSA.

A2. On 20 SEP 2007, I was seen at NNMC Bethesda, MD at the Walter Reed Sleep for a follow-up to review my sleep study which was conducted on 09 JUL 2007. The sleep study indicated: Respiratory Disturbance Index= 45/Hour Diagnosis= Obstructive Sleep Apnea CPAP 9CM

Doctor Directed START CPAP therapy with 9CM H2O pressure. CPAP was issued.

A3. On 08 JAN 2008, I was seen at NNMC Bethesda, MD for a follow-up. I was issued a chin strap to improve treatment and directed to increase use of CPAP>6-7 hours/night for maximum benefit.

The Following additional evidence has been provided as proof that the OSA began while in military service before my retirement on 31 MAR 2008:

B1. Sleep Study from the Laboratory for Sleep disorders dated 9 JUL 2007 indicted "a significant degree of sleep apnea".

B2. Delivery Ticket from Respira Medical on 20 SEP 2007 showing delivery and receipt of CPAP to myself.

The Following additional evidence shows the OSA is continuing and currently present as well as treatment compliance:

C1. Sleep study from California Sleep Solutions dated 20 NOV 2008 indicating Moderately Severe Sleep Apnea with a Respiratory Disturbance Index of 49.7/Hour.

C2. CPAP Treatment Compliance Information 7 JAN 2008-5 JAN 2009 indicating treatment compliance.

This new evidence supports a permanent/chronic sleep apnea condition requiring the use of CPAP therapy incurred in or aggravated by military service.

--Hopefully this does the trick. I read that medical records currently in the VA's posession is not considered new evidence, even though it may have been overlooked. That's why I submitted new evidence that those medical records were founded on and the receipt (Items B1 and B2) in addition to evidence showing its a current condition (C1) and being treated from before I left active duty(C2).

I filed this with the California Department of VA and they sent it to the regional office.

Thoughts?

-Phoenix

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To J,

I will go for the NOD next. Here is my planned response based on your assistance and additional information.

Notice Of Disagreement

I disagree with the decision dated December 9, 2008 that denied my claim for sleep apnea.

I filed new evidence on January 16, 2008 supporting my claim in response to the VA's request for additional information within the one year time limit granted by the VA.(Attachment 1).

I request a de Novo review of the decision by a Decision Review Officer and I intend to request a Substantive Appeal if this claim continues to be denied.

I was diagnosed in service and issued a CPAP machine and still have the condition to this day.

According to the regulations the sleep apnea is service connectable if is was diagnosed in service and a current treatable condition.

The use of a CPAP machine warrants a 50 percent rating per the regulations.

Please reconsider the denial and correct this decision and apply the proper rating criteria for this claim per the title 38 cfr 4.97.

4.97 Disorders of the respriroty system. Sleep Apnea.

6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):

Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy 100

Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine 50

Persistent day-time hypersomnolence 30

Asymptomatic but with documented sleep disorder breathing 0

--I think that hits all the boxes for step two. I will wait for them to respond to my new evidence first, checking every 30 days for further activity. Hopefully this letter helps others as well.--

--Phoenix

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