Sleep Apnea Disability Denial

[xman52]

I recently retired from the USA after 21 years. I was diagnosed with Servere Sleep Apnea (74 occurances an hour) four years ago and perscriped a CPAP. I have been using it religiously since. I was suprised to get my VA disability rating of 0% saying the Apnea was service connected, but because it didn't effect my ability to work a full time job, I was denied. I was shocked! Based on other friends I know, I was expecting 50%. What should I do now? intend to appeal, but don't know if I should contact the DAV for support. The majority of the issues I read about talk to proving the diagnosis and service connection. I have both documented. Can anyone help point me in the right direction? Thanks!

[71M10]

The decision said

" Service connection for sleep apnea has been established as directly related to military service.A noncompensable evaluation is assigned from September 1, 2007. A noncompensable evaluation is assigned for an asymptomatic condition. A higher evaluation of 30 percent is not warranted unless there is persistent day-time hypersomnolence.

The evidence of record indicates that you underwent a sleep study in service at Fort Leavenworth, Kansas in 2003. Diagnosis was sleep apnea. Current findings show that you use a CPAP machine. You have no problems with breathing and you have no signs of of hypersomnolence (need excessive amounts of sleep). The examiner states that your sleep apnea does not affect your occumaption or activities of daily living.

The evidence of record shows that you were initially diagnosed with sleep apnea in service, service connection is granted effective the date after your discharge from service.

This condition is rated at 0 percent disabling because evidence does not show any problems with breathing or any effect on your occupation or activities of daily living. A high evelauation of 30 percent of 30 percent would be warrented if persistent day-time hypersomnolence were shown"

The bottom line is I can's sleep without my CPAP. My problem is probally worse than when diagnosed with 74 instances an hour... What should I do?

This type of CRAP from the VA is really troubling! I have inserted the VASRD section on Sleep Apnea. File A NOD (notice of disagreement) which can be a simple letter stating you disagree with the decision and state why. In your why, indicate that the VASRD clearly states: Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine is a 50% rating. I would also include a sentence or two about how this disrupts your sleep and effects your relationships (snuggling up to a person wearing a Darth Vader mask). Point out what things you can no longer do because of the required treatment. for example, I can't backpack anymore (70 pound trolling battery is a bit much to heft in a pack).

6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy100Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine50Persistent day-time hypersomnolence30Asymptomatic but with documented sleep disorder breathing0

If this is your only problem with the rating it should be a slam dunk for you. The only thing that could complicate this further is if the medical diagnosis on your sleep apnea doesn't "require" your use of CPAP, but with 74 apnea's per hour I doubt that is the case.

I guess the worst thing is that this will delay things.

It kinda makes you wonder if some e-mail is floating around the VARO's about out of control sleep apnea claims.....

I know my sleep apnea is service related but unfortunately I don't have enough evidence to file for it. :-(

Best regards,

Tyler

[Berta]

I think their decision is absurd.

I suggest you get the DAV to support a Request for Reconsideration of that decision.

This will not stop the NOD clock-if they do not address the Reconsideration Request as the year after the decision starts to end -make sure you file a formal NOD-

This BVA decision shows how wrong that decision is:

http://www.va.gov/vetapp08/files1/0800540.txt

and supports what someone else said here.

It is almost like the VA is saying- if a vet loses their leg in combat from IED-and gets a prothesis for it- then the vet has a 'non compensable' disability.That sure would never fly-

Seems like they are trying to pull that BS with you.

The RO awarded a 50 percent rating for the veteran's sleep

apnea, effective December 13, 2005, because it found that

this was the date on which it became apparent that she needed

a CPAP machine, as evidenced by the date of the receipt for

the rental of a CPAP machine and the purchase of related

equipment. However, a 50 percent rating under DC 6847 does

not require that a CPAP machine be purchased or rented.

Rather, a 50 percent rating is warranted where the sleep

apnea "requires use of breathing assistance device such as

CPAP machine." A March 17, 2004 National Jewish Medical and

Research Center treatment note reflects that the veteran was

assessed with sleep apnea and daytime fatigue/fogginess, and

the plan/treatment indicated a sleep study with evaluation

and "CPAP fitting." As this is the first medical evidence

that reflected that a CPAP machine was required for the

veteran's sleep apnea, the veteran is entitled to a 50

percent rating as of that date. See 38 C.F.R. §§ 3.400 &

3.400(o)(1) (2007) (for original claims and claims for

increase, the effective date is the date of receipt of the

claim or the date entitlement arose, whichever is later)."

[Ricky]

It does sound like they are playing a game with the claim. My sleep apnea claim was denied due to the fact that the doctor did not connect it to service. However, on the report that he wrote up he did say that my hypersomnia was affected by GERD, Allergies (both of which I am SC'd for) Chronic pain syndrome and nocturia (both of which I have claimed along withe the hypersomnia), I figure that 30% is better than nothing.

If this is the wording of the rating decision it sounds like a decision issued by the Montgomery VARO !!!!!!

The wording that you provided below says that you are service connected at 0 percent. Then in this post you said I figure that 30 percent is better than nothing. I am a little confused - are you receiving 0 or 30 percent (sorry but I get confused easily hahahahaha). At any rate the rating schedule demands a 50 percent rating for SA requiring the use of a CPAP. Does not matter about anything else. Therefore, this decision is totally flawed and needs to be changed. You could ask for a reconsideration (although a reconsideration normally requires submission of new evidence). Try it. If it does not work then submit a Notice of Disagreement. You will be successful in a 50 percent rating even if it has to go the the BVA level. I am sorry to see such a rating as this for this type of incompetence only clutters an already over burdened system and shows that the backlog problem is self imposed.

[huskerfanfl]

I deleted my previous message because it was confused with the original post. I apologize for causing any confusion or anything else I may have done inadvertently.