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Denial of Sleep Apnea without C&P Exam

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Galen Rogers

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Howdy All,

I originally file a claim for Sleep Apnea (OSA) in 2008 after I was diagnosed in late 2007. That was after I retired from the Navy so the diagnosis was never in my military health record. I filed it on my own because my AMvets rep said it would not get approved and he would not mess with it. The VA sent me a request to allow them to contact my doctor directly that I signed and sent back. I knew nothing about a NEXUS letter or lay letters or even the connection with Reflux, Rhinitis, and Sinusitis. A short while later after they contacted my doctor I received the denial letter stating "Not service connected".  Because of my ignorance I accepted that until a few fellow retirees with OSA said they did the same thing but then provided lay letters from shipmates and their wives and their claims were approved. Since then I have read all I could find and have reached out to others for assistance. So my real question is " Would the fact that I was not provided a C&P exam be a basis for a CUE?" The denial came from the Regional VA office.

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No.  The VA is "not required" to do a c and p exam.  The burden of proof is on you to provide the applicable 

diagnosis, in service event or aggravation, and nexus.  Of course there still may be Cue errors, we can not tell that without a thorough review of your file.  But, the VA is not required to do a c and p exam..they have discretion to perform/not perform c and p exams.  

Sometimes, for example, there already exists in the file sufficient evidence to award/deny without a c and p exam.  

Example:  You have a diagnosis, nexus, and in service event, however, you dont have the requisite discharge.  No c and p exam is needed, because a c and p exam wont fix a bad discharge.  

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Thanks for the responses. I do have a NEXUS letter for OSA in regards to already being diagnosed with Reflux, Rhinitis, and Chronic Sinusitis in my MMRs. I was just seeing if I could add the no C&P to it. Guess not. Of course the VA does not have to agree with my NEXUS letter so I know it will be an uphill battle. I also now have supporting lay letters but the NEXUS letter will be what gets it approved retro-actively to my original claim. If not then I have to file a new claim and start over. Again thanks for the comments. Definitely appreciated! 🙂

 

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What Bronc opined and a couple questions. Could you post a redacted copy of the VA Denial Letter?

It appears from your Vet profile that you are not Service Connected for any Disabilities, correct?

With no MSR Evidence of DX or Treatment for Sleep problems, while on active duty, your only chance for an SA Rating would be as a Secondary condition, a Direct SC is never going to happen.

As to no C & P, the Evidence of Record "EOR" in your C-File was obviously more than adequate for the Rater to make a Denial Decision. Your Denial Letter discusses all Evidence of Record Reviewed and Reasons for the Denial Decision. We need to see them!

How long after Discharge was your DX for SA, what type of SA, (OSA, CSA or MSA)? Was your BMI 28%+, neck size 17+, waist 40+, told you have a large tongue?

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I am 40% SC for  right knee, Thoracic Outlet Syndrome (right and left arms), Reflux, and Allergic Rhinitis. I was original denied for chronic Sinusitis but I am filing a CUE for that because it was definitively diagnosed and listed several times in my MMRs.  OSA was never diagnosed in service and I only went to sick call a couple times complaining about fatigue, morning headaches, or sleep disturbances. We were all tired everyday.  I had the symptoms back then. My shipmates always complained about my snoring and I ended up working nights most of the time so I would disturb the least amount of people. I dozed of constantly any time I sat down for a few minutes. Going to sick call about it would have labeled me a malingerer so I just dealt with it. At sea periods don't provide a lot of sleep time. During in-port times we sailors tend to maximize our time to do as much as possible to make up for the sea time. 🙂

So there is some tell tale evidence I had sleep issues in my MMRs although minimal. My first diagnosis was 7 years after my retirement. That is when treatment began also. I did not have a big neck but I was 20 lbs over my active duty weight. 

My NEXUS ties the facts that I had Reflux, Rhinitis, and Sinusitis in service. OSA is directly associated with those problems. Medical studies and literature at that time stated those connections and the VA Rater should have known that. Anyway that is the approach we are taking for the CUE. 

VA 2008 Denial of OSA Redacted.PDF

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What is your basis for CUE?  What are your current SC percentages, that combine to result in your CSC 40%?

This was a Direct SC Claim, not a Secondary SC linked directly to a current established SC. Your above post referenced the possible etiological association of  OSA and Reflux, Allergic Rhinitis, and Chronic Sinusitis.

Have you obtained an IMO from a Board Certified Sleep Specialist, preferably a Board Certified Neurologist, supporting any of your NEXUS theories?

You might want to search BVA Decisions for SA Decisions specifying your specific maladies. I don't recall seeing any but I could be mistaken.

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