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    • Question A. I was previously denied for apnea – Should I refile a claim?
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Help With Sleep Apnea Denial



Hello all; this is my first post. I’ve learned a lot in this forum yet realize I have so much more to learn.

More confused and disappointed about misinformation than anything else but I got a heads up from the DAV that the VA denied 8 of my claims. I didn’t get the official VA package yet, only a heads-up letter from the DAV who is in the loop on my claims. One of the big items they disapproved was my sleep apnea. I had very bad gout/arthritis issues just as I was about to start my terminal leave. During that time, a tumor was found and removed from my right foot. These issues delayed the start of my terminal leave and resulted in me having to sell back 60 days of leave.

Retired 1 Sep 08; Referral from primary care provider: 19 Nov; Initial sleep study consult 29 Dec; Sleep study Feb 09; follow-up with doctor Mar 09.

I suspected sleep apnea for quite some time but wit everything else going on, that had to wait. I wasn’t worried because I was repeatedly told that anything I claim within one year of my retirement will be treated just like I was on active duty. I was told this by at least 3 VA reps visiting my local base while on active duty. So, a month after my retirement, I scheduled an appointment with the base hospital that just started a sleep lab. It took a month to see the doctor and two months to have the study done.

About a month after the study, I had my follow-up and the doctor; now at my six month point since retirement, and he told me I had the worst case of sleep apnea he has ever seen and that I must have had it for years. I asked him to put what he just said into my medical records but he only put “severe sleep apnea”. He ordered the machine and I used a rental during that time all through my cost share and Tricare.

Under the guidance that this was within my first year since retirement I was shocked that they out right denied my claim for sleep apnea. I contacted the DAV and tried what some people on this forum have done/tried and attempted to get the decision over-turned now, before the review process is done and the VA sends the package but the DAV said I must wait as the decision was already made. The DAV said I didn’t show enough of the sleep apnea being service connected; that I had the issue while on active duty. Again, I am still confused because 3 VA reps told me anything the first year was as if I was still on active duty! Yes, confused and stressed!

I made another appointment with the same doctor and will ask him to put what he said into my medical records or something to the fact that in his opinion, my condition isn’t something that typically is so severe that just occurred since retirement. I also understand that I can/should get letters from co-workers supporting symptoms observed while around them. Once I receive the VA package, I will then submit this information to the VA for appeal.

Am I missing anything that I should also do? How long is a typical appeal process? If over turned, do they start compensation as of the date I initially filed, date of appeal, or approved date?

To be honest, my quality of life after starting using the CPAP machine more than tripled so I am in a win/win situation already. I fell asleep on the highway more than once driving home from work since retirement and the reason I didn’t have this issue while on active duty is I lived on base, only 5 minutes from work. Now I’m 40 minutes from work by highway and was dosing off frequently.

For years, I would frequently wake up with a violent jerking reaction, often waking/scaring my wife. I had no idea this was or could be related to sleep apnea at the time. This is already documented in the sleep study medical records since retirement but I guess carried little weight in the decision making.

Any advice is most welcome.

Thanks all;


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I was just awarded 50% for apnea. The only thing I submitted were my 2 sleep study reports showing the apnea worsened during a period of active duty. Basically, the reports show number of apnea episodes and oxygen levels during sleep. It seems the sleep study reports are key since they show "hard science" proving it exists, rather than subjective conclusions by a Dr. I would highly recommend getting the sleep study reports directly from the lab that took them. You can't count on the reports making their way to your military medical file. Mine didn't. Hope that helps.

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the date the VA wrote the rating decision started a 1-year clock. You must "appeal" within that timeframe, otherwise your claim is final. It can be reopened, but the the standard is higher than starting the timely appeal process. don't let that date go by! Since you are probably within 6 months or so, I would be ready to prepare a NOD, even if it is last minute.

You need your sleep doc to state that your OSA began during you military service using one of 3 precise, exact phrases:

...is due to... (100%)

...is more likely than not... (>50% but <100%)

...is at least as likely as not... (50%--and the min standard for the VA)

As you alluded, you will need him/her to state that in his/her professional opinion, your OSA could not have manifested itself to the degree you have it in the short time between retirement and sleep study.

Include a personal lay statement describing your symptoms as you mentioned them below, particularly the daytime sleepiness, and why it never manifested itself to the degree it did during service. Have your spouse write a letter explaining how badly you snored, how long (years), how loud, and most importantly the part about the silence of not breathing followed by the gasping for air and the violent reactions you had. As a layperson you can't provide medical opinion or diagnosis, but you can describe classic symptoms in detail, as can your spouse. If there are others that can describe similar episodes, so much the better.

Appeals take as long as the VA wants them to take.

You might want to gather additional evidence (doctor statement, etc) and file a request for reconsideration. That will be quicker (I use the term rather loosely) than a NOD, but if you are coming up on the 1-year anniversary of your claim letter, go ahead and file a NOD to protect your appeal rights. If the reconsideration is successful, then the NOD becomes moot; otherwise you are now in the appeal process (which means any decision in your favor requires backpay dating from the original claim date).


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