Sleep Apnea - Do I Have A Shot?

[joeyjoeyb]

Been lurking around for a while and decided to join from a friends referral. Here is my story...I am going to piece it together as best I can:

I kind of summerized my story...please let me know what you think. Like I said, everything is submitted...so I am just waiting now.

I am going to try and make this short. I always knew I had sleeping problems, but never got a sleep study while on active duty. Anyway, had a bunch of medical stuff going on at the end of my 20 years in the Air Force. ( I retired with 20 years in) Anyway, I did say something to my primary care manager at the time, that I was really tired all the time. Blah blah blah…He told me to take care of my other medical issues going on at the time and we would get to that later. (had my gall bladder removed in march of 06…. retired sep 06). I went to a transition assistance class I believe in April of 06 and a VA person came in to brief us. I remember him saying (and wrote it down in my little packet) that you have a year to claim something from VA that is not in your service medical records. I took that to heart and knew that I would have plenty of time to request a sleep study after I retired. (mistake number one) My retirement is official 1 Sep 06. Request a sleep study from my new PCM in October 06. Diagnosed with SA in December and got a CPAP machine. Went to my C&P examine in April 07 and ADDED SA to my claim (was not on the original because I did not know I had it yet)…give her the sleep study and CPAP order. Life is good. I get rated at 40% and was denied sleep apnea because it was not in my service medical records!!! No mention of anything. Now there was a mention of alergies and gerd. I still take claritin and nexium everyday.

Well I did not go through a VSO to start with. (mistake number 2) So I have one recommend to me and meet with him. He tells me some things I can do, but says VA will stick with the LAW and will not over turn their decision because I have no proof in my SMR. So I ask for a REQUEST FOR RECONSIDERATION. So I dig my SMR's out and go page by page. Nothing in my records at all about complaining of my sleep problems. BUT in 1993 I had an ECG done and says it was normal except for sinus bradycardia. Doing a little research on the NET and the 2 can be connected.

So I get a buddy letter from a friend of mine that deployed with me several times and used to want to kill me that I snored so loud. My wife writes on up for me (she has seen the worst of it), a letter from my PCM saying that it is more likely then not, that my SA started in the service and a letter from the doctor that read my sleep study test saying:

""I interpreted the overnight sleep study showing mr. xxx has obstructive sleep apnea and peridic limb movement disorder.

"while I have not met the patient, I can assure you that patients in gereral with OSA and PLMD have had these syndromes and their signs and symptoms for a number of years prior to knowing of the formal diagnoses"

A pretty general letter, but that was the best I could get. Plus I wrote a statement on my behalf.

Here is the letter from my wife and my Primary Care Manager:

My name is XXXX, I am the wife of XXXX I have known my husband since September 1997, and we were married in June 1999. I have been with my husband every day since 1997, except when he was assigned to temporary duty (TDY), and have observed the effects of significant sleep disturbances throughout the duration of our marriage.

Whether sleeping at night or while napping, XXX routinely snores. Over the years, the snoring has gotten progressively louder, and occurs during every period of his sleep. In addition to the snoring, I have often observed him experience periods of silence and pauses in breathing during his sleep. Following these breathing interruptions, Mike will gasp for air, and either wake up or resume snoring.

Mike's snoring is a major contributor to his overall restless sleep. While sleeping, Mike routinely moves his legs throughout the night. Our bedding is regularly disturbed; sheets become twisted, blankets and pillows end up on the floor, and I have witnessed visible signs of wear on our fitted bed sheets at the location of Mike's feet. For years, Mike has complained of daytime fatigue and frequently makes statements to the effect, "I feel like I did not sleep at all." As a result of Mike's restlessness, I often experience daytime fatigue as well. It is not uncommon for Mike to move to the living room or guest bedroom during the night. On numerous occasions I have asked Mike to move to the guest bedroom as a result of his snoring. On many other occasions, he has relocated due to his restlessness or concern that he will wake me from my sleep.

It came as no surprise to me that Mike was diagnosed with obstructive sleep apnea and periodic limb movement disorder. I can attest with certainty, the symptoms associated with these diagnosis's were present for many years prior to the diagnosis date of ___.

I hereby certify this information is true to the best of my knowledge and belief.

This letter is in regard to Mr. XXX diagnosis of Sleep Apnea and the fact

that it was diagnosed after his retirement date of 01 September 2006.

Although it was diagnosed after 01 September Mr. XXX was having symptoms

long before he was tested and it as likely as not that the sleep apnea began

in service. The reason he was not tested prior was because of other health

problems took precedence. He had his gallbladder removed and then developed

complications including gastritis, prostatitis. Mr XXX did mention to his

PCM at the time Dr. XXX that he was having trouble sleeping, felt tired all

the time and he was having complications with his legs, as in, involuntary

movements that kept him awake at night. Dr. XXX instructed Mr. XXX that he

should take care of the surgery complications now and then his other

symptoms could be addressed at a later time. Due to these complications I

feel that Mr. XXXs retirement date arrived before the sleep apnea issues

could be addressed.

Please consider the fact that he did have the symptoms for years prior to

being diagnosed and treated for Obstructive sleep apnea and restless leg

syndrome.

So that is where I am at. I gave all this stuff to my VSO. And he still says that VA will stick to their guns and go by the LAW and say that there is nothing in my SMR's to connect me to having sleep apnea. I mean 3 months after I retired. Are you kidding me. I have submitted all this to my VSO around Jan - FEB 2008. So I guess my question is…..DO I HAVE A SHOT IN HELL ON THIS ONE?

Sorry for the long post....but wanted to opinions out there.

Mike

[Ricky]

Ok here we go:

1st item of issue - I do not know what your VSO told you but this reconsideration that you asked for is about to lead you out in left field alone. By this I mean that although you have asked them to reconsider their decision the appeals clock is still ticking. From your post you indicated that you were denied in Aug 07. I certainly hope that it was not 1-17 Aug 2007 for if so then you just missed your chance to appeal (submit your NOD) this decision!!!!!!!!!! If it was 25 or 31 August GET YOUR NOD IN NOW WITHOUT FAIL!!!!!! If you have missed your 1 year to appeal date and the reconsideration fails (which it will as you did not provide any new medical evidence other than a generic IMO) you will have to reopen this claim with new and material evidence.

Medical evidence - OSA is not a presumptive disability. It is one that if you file 11 months 29 days after leaving the service and you have a diagnosis in service or continued symptoms in service you can get it service connected and the effective date will be back to your departure from service.

The IMO your sleep doctor gave you is kinda standard for sleep doc's. They do not like to commit to anything. You are going to have to get a doc to either state with some medical certainity that the OSA you now have either developed during service without any symptoms (you reported none) or it is due to your gerd. The buddy letters you have obtained and that of your wife will be considered, and may just work if you had just one report of tiredness or trouble sleeping. They will still work and weigh greatly on your claim if you get an IMO (above).

Just keep in mind if you want a doc to support a claim of OSA in service without symptoms get away from a sleep doc. I had just as soon approach a horse doctor for help hahahahaha.

Now just a couple of comments on your letters: First the doc -yep I am sure that guys and gals in GENERAL do a lot of things but what about this guy? you already stated the take on this one TO GENERAL

wife: First para: "effects of significant sleep disturbances throughout the duration of our marriage." The VA will say "hmmmmmmm.... She is not a doc or a person medically trained in such things so she can not provide such a diagnosis (just keep this in mind for future reference. The wife unless she is a medical person simply needs to provide what she did in the rest of the letter. The same goes for statements as this: "Mike's snoring is a major contributor to his overall restless sleep." She can say that you are restless during the night tossing and turning and she can say that you snore like a bear but she can not say that anything contributes to anything. Well she can and and signifant others do (mine does all the time) but the VA won't let them

On the PCP (the new guy) letter just a couple of quick comments as the letter is very supportive. However, do a search on IMO's and you will get plenty of info on what an IMO has to have in it. I just want to give you the most probable way the VA will look at this letter and assign weight. The biggest indicator is in the opening statement:

"Although it was diagnosed after 01 September Mr. XXX was having symptoms long before he was tested and it as likely as not that the sleep apnea began in service."

Wow!!!! Since the doc did not give any rationale as to how he reached this the rater will probably place little to no weight on his letter at all. First it is already known that there is no complaints of sleep problems in service. So the first thing the rater will jump on is hey this guy wrote this letter based solely on the reported history as reported by the patient. Keep in mind this is not how ricky thinks this is how the VA thinks!!! I will stop it here.

BOTTOM LINE IS CHECK THE DATE OF THE DENIAL - IF NOT TOO LATE GET THAT DANG NOD IN NOW!!!!!! Good luck with your claim.

Hey you asked for comments hahahahahahahaqha

Edited August 18, 2008 by Ricky

[Ron II]

Re: "Medical evidence - OSA is not a presumptive disability. It is one that if you file 11 months 29 days after leaving the service and you have a diagnosis in service or continued symptoms in service you can get it service connected and the effective date will be back to your departure from service." -Ricky-

OR...if one does not file within that 11 months 29 days and the circumstances are like Ricky described,

one can receive a disability rating effective the date of filing rather than the eariler date discussed.

That is what happened with my asthma SC.

It began while I was on active duty and was documented.

It was documented that I was treated for it on active duty and continued treatment during the first 12 months after discharge PLUS from then to present date. I added it to my claim 1 Feb 07 and that was the effective date of compensation eventually.

Ron

[joeyjoeyb]

Ricky,

Well now this is not what I wanted to hear. I thought (and believe my VSO told me this) the proper chain of events was a request for reconsideration, de novo review then appeal. So that is what I did. The phrase "at least as likely" is something my PCM put in the letter for me because I read that in another post on another board and thought that is what needed to be in the letter. I am trying to play by the "rules" if you will, but am getting more and more confused. Alot of people have told me that my case seems pretty open and shut in my favor. Especially with being diagnosised 3 months after my offical retirement date. I am really not sure what to do here. I was denied SC on the 8th of August 2007, so I think I missed the window for the year. To tell you the truth, the back pay would be nice, but just getting SC'd would be fine with me.

[Ricky]

Ricky,

Well now this is not what I wanted to hear. I thought (and believe my VSO told me this) the proper chain of events was a request for reconsideration, de novo review then appeal. So that is what I did. The phrase "at least as likely" is something my PCM put in the letter for me because I read that in another post on another board and thought that is what needed to be in the letter. I am trying to play by the "rules" if you will, but am getting more and more confused. Alot of people have told me that my case seems pretty open and shut in my favor. Especially with being diagnosised 3 months after my offical retirement date. I am really not sure what to do here. I was denied SC on the 8th of August 2007, so I think I missed the window for the year. To tell you the truth, the back pay would be nice, but just getting SC'd would be fine with me.

To some extent your VSO was correct, however, it appears that he left out a couple of details if this is all he told you.

IF, you have new evidence that happened prior to the rating and it did not get sent in and considered you can ask for a reconsideration.

However, the clock on the 1 year to appeal still ticks during the reconsideration process. You only have one year from the date of the ORIGINAL decision to start the appeal process. The first step in the appeals process is the NOD which will result in a de novo review by a Decision Review Officer (DRO). If the DRO denies your claim you then have 60 days from the receipt of the Statement of the Case (SOC) to submit a VA Form 9 which goes to the Board of Veterans Appeals (BVA). In summary the NOD starts the appeal process and it must be submitted within one year of the decision. The Form 9 continues and formalizes the appeal process. It must be submitted within 60 days of receipt of the SOC.

This 12 months from release of service thing - this was developed to allow a veteran to apply for comp for a disability that arises within the first year of discharge.

However, it still follows the rules. If it is a presumptive disability then you do not need any proof of connection to your service. However, if not a presumptive disability you will need some type of connection (evidence) to your service. That can be in the form of complaints etc.... in your smr's or a doctor's statement/opinion which ties the current diagnosis to your service. The statement/opinion must provide a diagnosis, a nexus to your service and a supporting rational as to how the doctor made this nexus. The medical letters should look something like this - Mr. XXXXX's OSA is as likely as not related to his service because OSA is a disease that develops over time sometimes months and sometimes years. In its early stages the patient may not even suffer from or display symptoms making it very hard to diagnosis in the early stages. Although Mr. XXXXX did not display any symptoms during his military service it is my opinion that his OSA was present at the early stage. My opinion is based upon my 15 years medical experience in the area of sleep problems, his current level of the disease, and the current accepted opinions within the medical community etc.....etc.....etc......

I am not a doc but it needs to go something like this. he needs to say you have it (diagnosis), it is at least as likely as not it existed during your service (nexus) and why he believes this (rational). When they say things such a generally etc..... that is what it means general - it must be specific to you.

Wait and see what they do with the reconsideration. If denied or you do not hear anything, just simply start over. With a good opinion, the letters you have and the fact it was diagnosised within one year of your discharge you stand a very good chance. I would not wait to long on the reconsideration for they will let you sit around for months thinking it is in the process and it is not even being considered. That is just the VA way. I would also question my VSO as to why he did not explain the correct process for the appeal. Either he does not know or he simply does not support your claim. either way you need to know. Always remember, the VSO is just there to support you in your actions, the claim and what happens to it is your responsibility! Good luck

Edited August 18, 2008 by Ricky

[joeyjoeyb]

Ricky,

Thanks so much for your help. This is really a big help for me. I am so confused with all of this. My VSO did tell me when I first asked for reconsideration, that he said that VA would stick to their guns and side with the LAW on this case, but said to file for it anyway. I guess my buddy statements and the doctors notes would be considered new evidence? Maybe that is why he suggested a request for reconderation.

Do you think I should get a stronger letter from my Primary Care Manager. Something in the lines that she wanted to add to the letter that she first wrote and that since seeing her that my apnea is still the same and basically use what you wrote to make it a stronger letter? She is always willing to help me when it comes to this stuff. She was very helpful when I asked for the first letter. Or should it come from another doctor all together? Not sure where to go here. I am seeing my Gastro doctor tomorrow at 2pm. I wonder if I bring this stuff to her and talk with her about it....I mean I am 0% SC for GERD and know the two do go together. Just not sure where to turn here. I really thought my case was good to go. But now it seems there are alot of leaks.....

[Ricky]

Ricky,

Thanks so much for your help. This is really a big help for me. I am so confused with all of this. My VSO did tell me when I first asked for reconsideration, that he said that VA would stick to their guns and side with the LAW on this case, but said to file for it anyway. I guess my buddy statements and the doctors notes would be considered new evidence? Maybe that is why he suggested a request for reconderation.

Do you think I should get a stronger letter from my Primary Care Manager. Something in the lines that she wanted to add to the letter that she first wrote and that since seeing her that my apnea is still the same and basically use what you wrote to make it a stronger letter? She is always willing to help me when it comes to this stuff. She was very helpful when I asked for the first letter. Or should it come from another doctor all together? Not sure where to go here. I am seeing my Gastro doctor tomorrow at 2pm. I wonder if I bring this stuff to her and talk with her about it....I mean I am 0% SC for GERD and know the two do go together. Just not sure where to turn here. I really thought my case was good to go. But now it seems there are alot of leaks.....

Still a winnable claim just need to plug a few of the leaks you mentioned hahahahaha. If I were you I would ask your pcp and the gastro doc.

as to the content of the letter I would suggest that you draft one and post it here on hadit for others to comment on. That way you will get a cross section review by many instead of just ole doc ricky :P