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Joep

Diagnosis Within One Year Of Retirement Denied

Question

I got a letter from the DAV giving me a heads up with my VA outcome. One of the many issues denied was my claim for sleep apnea most likely because it was diagnosed six months after I got out. I suspected sleep apnea for at least two years but I traveled a lot while in the service and had many issues with my knees, feet, and ankles that took priority.

I didn’t worry because three different VA reps told me that anything found within one year of retirement would be counted just as if I was on active duty. Were all three wrong? I was shocked that the claim was denied. I don’t have the VA package yet, just wanted to ask about being diagnosed with something like this within one year from retirement.

My doctor (Air Force doctor who is an expert with sleep disorders) said I had the worst case of sleep apnea he has ever seen, that I had it for years, and that I would be on the CPAP machine for life, even if I lost a lot of weight. Previously, he said many can loose weight and no longer need the machine. I asked him to put all this in my records but he didn’t.

What is the best strategy to get this over turned?

Thank you

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5 answers to this question

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"I didn’t worry because three different VA reps told me that anything found within one year of retirement would be counted just as if I was on active duty. Were all three wrong?"

You bet they were.

if a chronic presumptive disease (one of the diseases listed in 38 USC 1112 ( 38 CFR 3.307-309)manifests itself to a degree of at least 10% disabling within first year after discharge,it will be service conncted as the rationale is that all of the diseases on the chronic presumptive list more than likely began during service if they are manifested at least to 10% disabling within the first year following service.

"My doctor (Air Force doctor who is an expert with sleep disorders) said I had the worst case of sleep apnea he has ever seen, that I had it for years, and that I would be on the CPAP machine for life, even if I lost a lot of weight. Previously, he said many can loose weight and no longer need the machine. I asked him to put all this in my records but he didn’t.

What is the best strategy to get this over turned?"

You need to get a medical doctor who has expertise in this filed to support your claim. They will need copies of your SMRs and all other medical records.

There is a topic here called "Getting an Independent Medical Opinion".It holds the criteria the VA needs from an IMO doc to support a claim like this.

Is there anything in your SMRs or on your discharge physical that proves inservice apnea?

The other claimed disabilities-why did the VA deny them?

They too need inservice documentation as to the "nexus" or link to your current problems.

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I remember going to an Army dentist because my TMJ was really bothering me. He did a exam and told me I had TMJ. He never put it in my records. He just wrote "examination". So years later I tried to claim in and my rating said "veteran's SMR's are silent on this issue". I was going to Vietnam and I bet the dentist and all doctors had orders to not slow down the meat grinder. I had a shrink when I got back who never took one note during six months of treatment for a mental health issue. I have no respect for military doctors.

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The AF went from the stationary bike fitness test to a "normal" test including a 1.5 mile timed run. And where did everyone end up running? On asphalt and concrete, including airfield ramps (thick concrete). Number of running profiles ballooned. Next thing was predictable--orders from hospital commanders everywhere to the doctors: stop issuing running/PT profiles!

Joep: 1st, are you on a CPAP right now? Where you on it when you filed your claim. Unless you were diagnosed in service (I was) and on a CPAP (I was/am), your pretty much guaranteed of not getting SC for OSA.

Can you get letters from spouse, roommates, etc. that can attest to your snoring, or better, stopping breathing then snorting/gasping for air before resuming snoring? Classic OSA.

You AF doc probably thought he was doing you a favor by not putting the OSA diagnosis/observation in your SMR--it would have been a MEB/PEB condition. Can you go back to him/her and ask for a letter (IMO) explaining the circumstances?

Lastly, as Berta suggested, an IMO from your current sleep doc stating that you OSA "at least as likely as not" occured during your military service. Any private doc must be able state that he/she reviewed your SMR.

Oh...start getting treated at the VA in addition to any other treatment/doctors.

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I got a letter from the DAV giving me a heads up with my VA outcome. One of the many issues denied was my claim for sleep apnea most likely because it was diagnosed six months after I got out. I suspected sleep apnea for at least two years but I traveled a lot while in the service and had many issues with my knees, feet, and ankles that took priority.

I didn't worry because three different VA reps told me that anything found within one year of retirement would be counted just as if I was on active duty. Were all three wrong? I was shocked that the claim was denied. I don't have the VA package yet, just wanted to ask about being diagnosed with something like this within one year from retirement.

What is the best strategy to get this over turned?

Thank you

Joep,

In my opinion the best thing to do would be:

1) When you get the actual Rating Decision file a Notice of Disagreement

with the denial of SC for SA.

2) Do as other's have suggested and see if your doctor, VA/Private, that has

reviewed your SMR's, feels your SA is either directly related to your military service

or related secondary to a disability that is SC'd.

If they will write a statement in support in the form of a medical opinion and

support their opinion with full medical rationale by relating it to your SMR's

or current medical records - it might get granted not too far down the road.

It is very important that you get the required medical evidence submitted

and continously prosecute your claim for it by filing a NOD and staying on top

of any timelimits emposed upon you by VA.

Here's a reg that will apply regarding effective dates.

This more likely than not is what the three VA reps were referring to.

Unless specifically provided otherwise in the statute, the

effective date of an award based on an original claim for

compensation benefits shall be the date of receipt of the

claim or the date entitlement arose, whichever is later.

38 U.S.C.A. § 5110(a);

38 C.F.R. § 3.400.

The effective date

of an award of disability compensation shall be the day

following separation from service or the date entitlement

arose if the claim is received within one year of separation,

otherwise the date of claim or the date entitlement arose,

whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R.

§ 3.400(b)(2). A specific claim in the form prescribed by

the Secretary must be filed in order for benefits to be paid

or furnished to any individual under the laws administered by

VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term

"claim" or "application" means a formal or informal

communication in writing requesting a determination of

entitlement or evidencing a belief in entitlement to a

benefit. 38 C.F.R. § 3.1(p).

Hope this helps a vet.

carlie

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OSA is not on the list of presumptive diseases. You will need a nexus that states the Veterans OSA at least as likely as not had its onset during the Veterans service.

You will also need a rationale from the doc that explains the disease and the time period it normally takes to rreach a certain level in an individual.

Using a CPAP is a 50 percent rating.

Do you have Hypertension? OSA is a leading cause of that dreadful disease.

J

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