thomasc

Congrats, I think asknod owes you $100, maybe someone at the AMC read his post.

If any of ya'll are interested, I've attached the studies and BVA decision below that I used as evidence in support of this claim. Maybe these will help somebody else out there.




Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort.pdf

OSA Secondary to PTSD 1.pdf

OSA Secondary to PTSD 2.pdf

BVA Decision.pdf

All, I have a claim in for service connection of Sleep Disorder secondary to PTSD/Gulf War Presumptives. I just received the following C&P medical opinion and was hoping that some of you in the know might be able to give me some WAGS? Will this most likely be rated as Sleep Apnea with use of CPAP? 50% Rating?

thanks in advance




Sleep Apnea
Disability Benefits Questionnaire

Name of patient/Veteran: XXX

Indicate method used to obtain medical information to complete this
document:

[ ] Review of available records (without in-person or video telehealth
examination) using the Acceptable Clinical Evidence (ACE) process
because
the existing medical evidence provided sufficient information on which
to
prepare the DBQ and such an examination will likely provide no
additional
relevant evidence.
[ ] Review of available records in conjunction with a telephone interview
with the Veteran (without in-person or telehealth examination) using the
ACE process because the existing medical evidence supplemented with a
telephone interview provided sufficient information on which to prepare
the DBQ and such an examination would likely provide no additional
relevant evidence.
[ ] Examination via approved video telehealth
[X] In-person examination

Evidence review
---------------
Was the Veteran's VA claims file reviewed?
[X] Yes [ ] No

If yes, list any records that were reviewed but were not included in the
Veteran's VA claims file:

VA electronic medical records (CPRS) reviewed.
VBMS reviewed.

If no, check all records reviewed:

[ ] Military service treatment records
[ ] Military service personnel records
[ ] Military enlistment examination
[ ] Military separation examination
[ ] Military post-deployment questionnaire
[ ] Department of Defense Form 214 Separation Documents
[ ] Veterans Health Administration medical records (VA treatment
records)
[ ] Civilian medical records
[ ] Interviews with collateral witnesses (family and others who have
known the Veteran before and after military service)
[ ] No records were reviewed
[ ] Other:

1. Diagnosis
------------
Does the Veteran have or has he/she ever had sleep apnea?
[X] Yes [ ] No

[X] Other sleep disorder, specify: other and unspecified sleep apnea
ICD code: 780.57 Date of diagnosis: February 15,
2005

2. Medical history
------------------
a. Describe the history (including onset and course) of the Veteran's sleep
disorder condition (brief summary):
The veteran served in the Gulf War from August 1990 through April/May
1991 he is claiming "unspecified sleep disorder", treated as sleep
apnea
with CPAP for the past 9 years. Symptoms at the time of testing
included headaches, dizziness, confusion, unrestful sleep, and
witnessed
apneic episodes during which the veteran would awaken, gasping for air.
He has been using a CPAP machine for the past 9 years with moderate
relief of symptoms. He is claiming that Gulf War veterans are awarded
service connection for "undiagnosed sleep disorders" as a presumptive
Gulf War condition.
He is also claiming that the condition is secondary to, but separate
from, PTSD.

b. Is continuous medication required for control of a sleep disorder
condition?
[X] Yes [ ] No

If yes, list only those medications required for the Veteran's sleep
disorder condition:
Hydroxyzine pamoate, prazosin

c. Does the Veteran require the use of a breathing assistance device such as
continuous positive airway pressure (CPAP) machine?
[X] Yes [ ] No

3. Findings, signs and symptoms
-------------------------------
Does the Veteran currently have any findings, signs or symptoms attributable
to sleep apnea?
[X] Yes [ ] No

If yes, check all that apply:
[X] Persistent daytime hypersomnolence
[X] Other, describe: Difficulty with concentration, fatigue.

4. Other pertinent physical findings, complications, conditions, signs
and/or
symptoms

-----------------------------------------------------------------------------
a. Does the Veteran have any scars (surgical or otherwise) related to any
conditions or to the treatment of any conditions listed in the Diagnosis
section above?
[ ] Yes [X] No

b. Does the Veteran have any other pertinent physical findings,
complications, conditions, signs and/or symptoms related to any
conditions
listed in the Diagnosis section above?
[ ] Yes [X] No

5. Diagnostic testing
---------------------
a. Has a sleep study been performed?
[X] Yes [ ] No

If yes, does the Veteran have documented sleep disorder breathing?
[X] Yes [ ] No

Date of sleep study: February 15, 2005

Facility where sleep study performed, if known: John Cochran
pulmonary sleep lab, John Cochran VA Medical Center, St. Louis,
Missouri.

Results:
Unspecified sleep apnea. Prescribed CPAP. Veteran has been using
CPAP for the past 9 years

b. Are there any other significant diagnostic test findings and/or results?
[ ] Yes [X] No


6. Functional impact
--------------------
Does the Veteran's sleep apnea impact his or her ability to work?
[X] Yes [ ] No

If yes, describe impact of the Veteran's sleep apnea, providing one or
more examples:
The veteran works for XXX. Because of PTSD
issues the veteran works from home via computer. The veteran states
that he has difficulty concentrating and fall asleep easily when
working.

7. Remarks, if any:
-------------------
Please see medical opinion worksheet.



****************************************************************************


Medical Opinion
Disability Benefits Questionnaire

Name of patient/Veteran: XXX

Indicate method used to obtain medical information to complete this
document:

[ ] Review of available records (without in-person or video telehealth
examination) using the Acceptable Clinical Evidence (ACE) process
because
the existing medical evidence provided sufficient information on which
to
prepare the DBQ and such an examination will likely provide no
additional
relevant evidence.
[ ] Review of available records in conjunction with a telephone interview
with the Veteran (without in-person or telehealth examination) using the
ACE process because the existing medical evidence supplemented with a
telephone interview provided sufficient information on which to prepare
the DBQ and such an examination would likely provide no additional
relevant evidence.
[ ] Examination via approved video telehealth
[X] In-person examination

Evidence review
---------------
a. Was the Veteran's VA claims file reviewed? Yes

If yes, list any reco
rds that were reviewed but were not included in the
Veteran's VA claims file:
VA electronic medical records (CPRS) reviewed.
VBMS reviewed.

MEDICAL OPINION SUMMARY
-----------------------
RESTATEMENT OF REQUESTED OPINION:

a. Opinion from general remarks: Is the veteran's sleep condition at least
as
likely as not related to his PTSD or the results of military service?

b. Indicate type of exam for which opinion has been requested: DBQ Sleep
Apnea

TYPE OF MEDICAL OPINION PROVIDED: [ MEDICAL OPINION FOR DIRECT SERVICE
CONNECTION ]

a. The condition claimed was at least as likely as not (50% or greater
probability) incurred in or caused by the claimed in-service injury, event
or
illness.

c. Rationale: It is examiner's opinion that the veteran's "sleep apnea" is
an
undiagnosed illness secondary to service in Southwest Asia. According to
the
Gulf War General Medical Examination DBQ, an undiagnosed illness is
established when findings are present that cannot be attributed to a known,
clearly defined diagnosis after all likely possibilities for such
abnormalities have been ruled out. The veteran's sleep study at John
Cochran
VA Medical Center pulmonary lab did not conclusively diagnose obstructive
sleep apnea but the veteran has been treated with success using CPAP machine
as if he were diagnosed with obstructive sleep apnea. His diagnosis is
listed as "other and unspecified sleep apnea" in his VA problem list.

The veteran further claims that his sleep condition is secondary to, but
separate from, PTSD. Supporting this contention are studies done by Brooke
Army Hospital and Walter Reed Army Hospital. In the Brooke Army Hospital
report, entitled Sleep Disordered Breathing in Combat Veterans with PTSD,
researchers concluded that "data show that more than 70% of those
active-duty
members who carry a diagnosis of PTSD are at risk for the diagnosis of
obstructive sleep apnea".
In the Walter Reed Hospital report, entitled Prevalence of Sleep Disorders
among Soldiers with Combat Related Posttraumatic Stress Disorder,
researchers
concluded that "sleep complaints were almost universal among soldiers with
PTSD. The majority were diagnosed with insomnia and/or obstructive sleep
apnea".

In a BVA decision involving the Hartford, Connecticut VA regional office
(Docket#10-25 465) entitlement to service connection for obstructive sleep
apnea as secondary to PTSD was granted with 'Reasons and Bases for Findings
and Conclusions' based upon the studies cited above.

Therefore, it is at least as likely as not that the veteran's sleep
condition
listed as "Other and Unspecified Sleep Apnea ICD-9 Code 780.57" is due to
were the result of military service.

Not to sound cold, but here's the business end of that situation. If you feel the examination didn't meet the requirements of what is considered adequate, and there's plenty of discussion here on just what "adequate" means, then challenge it on those grounds. The RO can't go back to the examiner for clarification, so there's the chance you'll be able to get a new exam.

Of course, if the exam met the criteria and you see no flaws, you can let it stand.

The truth is that the longer our appeals linger in the system, the odds increase that people who provided evidence both for and against our claims will pass away. That's happened to us in the last 20 years, so you are not alone in this experience.

Congrats, you asked for an increase Nov. 2013? that was really fast. Have you received your rating letter?

So today makes the one month mark since my verbal award from VA(VA agreed 100% P&T, with SMC(S)+(K)), but no changes to ebenefits yet.

It amazes me how many years have gone by since I started my claim, and these last few weeks seem like an eternity. I hope to see something soon, ebenefits update, rating letter.

I did get an IME last week for PTSD, sleep apnea, and TBI. I just don't trust the VA, or their verbal award. I am just moving forward and collecting the pieces, not being denied again.

Hello USMC_HVEQ,

I have been dealing with sleep problems for years, and after much asking (2 years) VA approved a sleep study with sleep center contractor. I was diagnosed with sleep apnea and provided a CPAP by VA hospital, and reopened my claim for sleep apnea but was denied service connection. The Doctor who did the sleep study won't write any letters in support of my claim as VA paid for the study.

In January I met a Gulf War Vet, who told me about a Doctor able to provide IMEs for PTSD and Sleep apnea. He said that the local VetCenter refers Veterans to her for PTSD when their traumas are questionable. So I called to schedule an appointment and since I am already service connect for PTSD and just needed Sleep apnea IME given a reduced fee.

So I'd recommend calling your local VetCenter an asking if they have a Doctor they refer Vets to for IMEs, or you can go in for counseling and tell them your situation. Sometimes asking for help with claims is a touchy subject, so take it slow. VetCenters are a branch of the VA, but seem willing to help with claims. There are other Vets there who can also share there experience, group counseling.

I hope this helps, sometimes it just takes asking the right person!

So I never made it to my reconsideration meeting, cuz VSO called and said "VA has agreed that I should be 100% T/P and will grant to the earliest effective date." I was looking for some answers at this meeting, but it sounds like the VA is going to do the right thing.

I am going to still work on sleep apnea and TBI, these were under appeal and won't equal anymore money but will protect my family incase I died from either of these, or lose my mind(TBI).

This is a interesting discussion. I was awarded SSDI in three weeks solely for my service connected back. No exams or appointments. That was in August 2012. In January of 2013 the VA denied TDIU and went so far as to say that since I was scheduled for a reevaluation on my SSDI that my disability was not considered permanent, never mind that my reevaluation was scheduled 5-7 years from the award date. My VA PCP stated that my service connected conditions made me unemployable, I had SSDI and they based the denial on a incomplete and fraudulent C&P exam. I was aware of the problems with the C&P and informed the RO, I also asked for a new C&P. Didn't make a whit of difference.

I would also whip out this too:

http://www.law.cornell.edu/cfr/text/38/4.6

Ҥ 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

On the TDIU form did you tell them of any side affects from your SC meds, that could hinder employment?
If VA ever turned you down for Voc Rehab, solely due to SC conditions, did you tell them that as well?

They tried to pull this BS on me ,probably for every single claim I have had in the last 2 decades.

If they can ignore probative evidence, in direct violation of VA case law, they are crapping on our most basic rights as claimants and it might take a battle ( been there on that) or just a minor skirmish, but this is always worth fighting for.

The regulations themself are often our Best ammo.

Yes, that was a great reply Lotzaspots!

“Examiners opined that your service-connected mental and physical disabilities do not preclude physical and sedentary employment."
If they didnt give a medical rationale for that, it is mere speculation.

“VA failed to address:
Social Security Award for service connected issues
Dr. Letter stating unemployability
PTSD - inpatient “
If SSA is solely for SC disabilities, they violated 38 CFR 4.6 here.
If they ignored any IMO letter, that too is violation of above
In they ignored the PTSD inpatient records, that too violates our basic evidentary rights.

If I were you (and I disagree with the VSO) I would bring a copy of this section of M21-1MR with me to the meeting:
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDYQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch02%2FM21-1MRIV_ii_2_secF.doc&ei=U9v4UufaNpT6rAHgoIDoDQ&usg=AFQjCNFmeGPdrTzYzXbz0XLQlN_kUwGdFw&bvm=bv.60983673,d.aWM

It is from M21-1MR, Part IV, Subpart ii, Chapter 2, Section F .

I agree Carlie,

The first thing a vet should do is look at the evidence the VA said it used in their decision. The second thing also in the decision is to look at why they denied?

In the denial is the answer in how to be approved!

If you can proof that what they wrote there is wrong you should be able to be approved in a heart beat.



Stillhere

jbasser don't forget the downplaying of conditions. Where medical records state moderate conditions and you get rated for mild. I imagine if they are asking for this you are going to need a independent medical opinion stating that with your conditions you are not able to secure or maintain gainful employment. However, per regulations:

§4.18 Unemployability. A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. With amputations, sequelae of fractures and other residuals of traumatism shown to be of static character, a showing of continuous unemployability from date of incurrence, or the date the condition reached the stabilized level, is a general requirement in order to establish the fact that present unemployability is the result of the disability. However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability. Where unemployability for pension previously has been established on the basis of combined service-connected and nonservice-connected disabilities and the service-connected disability or disabilities have increased in severity, §4.16 is for consideration

Also:

§4.16 Total disability ratings for compensation based on unemployability of the individual. (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

Anyways you might have looked at this but I think it is a good reference point. They are supposed to look at every when considering unemployability. Service connected conditions and non-service connected conditions. Just my opinion but a functional capacity test might be beneficial .

I find it convenient that in the DBQ it asks for this type of opinion and it was not thoroughly completed and answered not surprising though. thomasc, this is just my two cents, maybe this would be helpful.

Just a brief word on SS disability records. Yes, the VA MUST consider those records. No, the records do not obligate the VA to agree with the SSA's decision.

However...

The VA's denial must adequately address and refute the SSA's rationale in order to be dismissed as inadequate to tip the balance of the benefit of the doubt in the veteran's favor. This is assuming the conditions upon which the SSA made its decision were caused by or were secondary outcomes of your service. It's not enough for the VA to say you can work in sweeping general terms without backing that up with its own solid rationale that had better be addressed in the decision to deny TDIU.

My experience has been that either SS records aren't listed at all in the Evidence list, or they are listed but never appropriately addressed.

Check 38 CFR on the discussion of TDIU eligibility and SS disability records. Check M21-1 (the VA's Procedures Manual) and also scan Court of Veterans Appeals decisions regarding TDIU. That will help you form your strategy if the reconsideration doesn't go your way, but I hope everything works out for you.