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By Willy P
Good Afternoon Team,
Short back story/timeline:
Left Active Duty: August 2015 Diagnosed with Sleep Apnea February 2016 (6 months later) Submitted claim in May 2016 with my evidence: Sleep study DBQ In service complaint of snoring exerpt from my medical record Favorable C&P Exam opinion (at least as likely as not...) VA Denied my claim in August 2016 I did nothing because I didn't think I could come up with any other evidence Fast forward to last year.....
I scratched some pennies together and paid for an IMO, then submitted the letter via a supplemental claim. I was awarded SC for sleep apnea at 50% within a month of the VA receiving my claim. Success! Here is the link to that process in the research forum:
So here is my line of thought...
Can I use HLR to fight for an earlier effective date, or do I have to use CUE? I mean, the VA had everything it needed to make the proper rating the first time (In-service event, nexus from the C&P doc, current diagnosis...). I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor. Why would the rater place his/her opinion over the VA's own doctor? Shouldn't the benefit of the doubt have gone to me? From what I understand, I can't CUE the benefit of the doubt anyway.
Since I am within the appeals period of the supplemental claim, I'm thinking the easiest path may be to request HLR in order to ask them to CUE themselves on the 2016 decision. Is that possible? I'm just trying to avoid CUE if I can, since it's mainly a "last resort" type of measure.
By S. Bruce
I was awarded 30% service connected for sleep apnea when I left the military in 2008. In 2013, I was directed to and took another sleep study. It was found and the VA agreed that I needed to start using the CPAP. VA reviewed the evidence, agreed, paid for and I have been using the CPAP since 2013. In Sep 2019, during a review of my records, my representative informed me that using the CPAP meant that my SA rating should be 50% versus 30%. I filed an increase claim and was increased to 50% with an effective date of Sep 2019. Shouldn't the effective date be April 2013 when the diagnosis was received and approved? I checked and the 50% rating for using a CPAP was in place in 2013. I wasn't aware of the rating difference at that time, so I didn't file a claim at that time. I'm asking because I'm thinking I may be due some back pay...……….
I read on one website concerning Sleep Apnea that in accordance with VA Adjudication Manual M21-1, Part III, subpart iv, chapter 4, Section D updated April 18, 2016; There is no longer the requirement to have been diagnosed with SA prior to leaving the military to receive a rating.
First, I looked at the cited manual and Section D, does not pertain to Respiratory issues, Section F does. So I'm just looking for clarification.
Moderator, you might want to Pin this somewhere, as this seems to be a recurring trend.
I have given out this information to others, but I will post it here so that others can find it rather than searching through the forum.
First and foremost, claiming and getting sleep apnea secondary to PTSD or Mental disorder is not easy. I have personally seen more lost than won, however, it can be obtained and I myself have personally received it.
If you had sleep apnea diagnosed while in active duty, it is usually a slam dunk........for the rest of those trying to get it, it could require a lot of work. I suggest trying to get it both direct and secondary service connected.
It is easier to get sleep apnea as a direct service connection obviously, however, most Veterans do not get it diagnosed while in service. Best way to get that resolved is through buddy statements. I suggest getting 3-4 (I personally had 7-8) or more. Do not have them only say that they saw you snoring.......that is great and all, but that is not a symptom of sleep apnea.......it is incidental. They would need to say that they saw you gasping for air, choking, etc. Preferably roommates. If you were deployed, it would be easy to have many people saying that they saw/heard this as you would have more than likely been in an open bay setting at some point in time. You can also have your spouse write up a statement. This all needs to be during active duty periods of times and dates need to be included. M21-1 reference III.iii.2.E.2.b "Types of Evidence VA May Use To Supplement or as a Substitute for STRs" allows for buddy statements to act as STRs for medical evidence.........if they are certified "buddy" statements or affidavits.............having them written on VA Form 21-4138 solves this issue as it has the appropriate verbiage written near the bottom. Under M21-1 reference III.iii.1.B.7.a and 38 CFR 3.200, it meets the certification criteria..........problem solved. From my experience, getting all of the buddy statements needed can take longer than you originally anticipate....plan ahead.
Now, for secondary criteria.
Have you ever been diagnosed with alcohol abuse (it is frequently written as "ETOH")? If so, has it been attributed to your mental disorder or did it exist prior to that and is it considered willful? If you have been diagnosed with alcohol abuse, and it is attributable to your mental disorder, guess what, alcohol consumption is attributable to sleep apnea.
would suggest that you start doing your own academic research. You might be able to locate peer-reviewed academic journal articles (those are the types of articles that you want to submit) through https://www.researchgate.net/. If not, another alternative is using a college database to search academic journals through. Ah, but you need to be a college student to use the database to search academic journals through. One might make an argument that you could register for classes at a local community college (you can even register online nowadays without even stepping foot on campus) and even register for "late start" classes, and have access to the aforementioned database immediately (hint hint, look in the academic journal Chest); one could easily find within a 60 minute search at least 5 appropriate and recent journal articles clearly establishing a link between specific mental disorders and sleep apnea; there is a clear link between PTSD, anxiety disorders, depression, and especially schizophrenia. One might make an argument that you could simply then disenroll from the classes that you enrolled in by the date specified in order to get a full refund, thereby being charged nothing. Save the academic journal articles as pdf files, and create a work cited page (bibliography) for them in APA format (google is your friend.)
You now have a choice...........
Submit your claim with the buddy statements, mental health notes from a private provider, and evidence that you have and go with either a VA exam or vendor exam (whichever is given) or you can get an IME and IMO from private providers. If go the latter route, I would schedule one with a sleep specialist, why, because sleep apnea is their specialty. Pulmonologists also fall within this scope as well, though I suspect that you will have better luck finding a sleep specialist believing there to be a link between mental disorders and sleep apnea. You will get a Sleep Apnea DBQ and an IMO. Make sure that you have your C - File first as an examiner is required to have access to it and state that they have seen it on the DBQ for it to acceptable proof to the VA.
I would also get one from your psychologists/psychiatrist (Make sure that they are a psychiatrist or a psychologist.....if a psychologist, they need to be PsyD or Ph.D., or under the observation of a Ph.D.).
Make sure before you solicit those medical opinions, that you acquire "buddy statements" from 3-4 (or even more) people with whom you served. Roommates would be best, or people who slept in close proximity to you.........again, this is only if you believe that sleep apnea developed while you were in Active Duty service. Make sure that they are written on VA Form 21-4138. Make sure they say that they witnessed clear symptoms of sleep apnea i.e. gasping for air, choking sounds, moments where they visibly or auditorily could determine that you ceased breathing etc.
Remember, you will want the sleep specialist and the psych professional to have your academic journal articles and buddy statements.
Once you have all of them, solicit your medical opinions from the two aforementioned providers.
Ideally, you would love for the IMOs to say that they believe that you could be both direct service connected for sleep apnea or secondary due to mental disorder, possibly even say that the mental disorder and sleep apnea aggravate one another (which there is medical evidence to support.)
If you opt to go the route of getting the private IMO and IME, you will obviously submit those with your claim, and all medical records from private providers pertinent to sleep apnea and your mental health treatment, buddy statements, academic journal articles, and a nicely written statement written by yourself on a VA Form 21-4138 talking about the issue at hand and summarizing everything concisely. Mention everything that you are providing that you wont to be considered for the claim, and when the issue first manifested.
My VSO let me know that my OSA appeal was denied. My original claim was a direct service connection.
I read the sleep apnea field manual from Chris Attig and appealed the decision.
On appeal I stated the OSA should be secondary to PTSD and sinusitis. I obtained an IMO from Dr Anaise and a DBQ with the at least as likely as not and medically necessary (CPAP) statements from my psychiatrist.
My question is on appeal can you submit evidence to make it a secondary condition or does it need to be filed as secondary from the beginning?
I haven't received the RAMP appeal denial letter yet. Also is there a section in the 38 CFR regarding secondary conditions with an original direct service connection claim?
Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
Vync posted an answer to a question,I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:
2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis
2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.
"...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.
First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date.
If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues.
I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.
It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.
Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.
Does this help?
Buck52 posted an answer to a question,Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.
The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.
Picked By66 bricks,