New Member - Sleep Apnea Denied

[Slick]

Just found the site and registered today. Impressed with amount of info being shared.

Looking for recommendation. Claim for sleep apnea denied, hard to tie it to service related other than I spent 36 years in and was diagnosed after I retired. Need recommendation for a doc to provide an Independent medical opinion. Located N. Virginia.

Thanks

[jbasser]

http://www.craigbashmd.com/

He is expensive but you will not get any better as he i s a specialist in the VA.

J

[Pete53]

Welcome to Hadit.

[carlie]

Just found the site and registered today. Impressed with amount of info being shared.

Looking for recommendation. Claim for sleep apnea denied, hard to tie it to service related other than I spent 36 years in and was diagnosed after I retired. Need recommendation for a doc to provide an Independent medical opinion. Located N. Virginia.

Thanks

Welcome,

I am editing your topic title to add Sleep Apnea Denied

and moving it to the Claims Benefits Research Forum.

[RichL]

If you can also get a buddy letter documenting that you had sleep apnea symptoms while you we're still on active duty that should also help support your claim.

[Slick]

appreciate all responses.

as background retired Oct 04. Couple years later primary sent me to shrink and sleep med doc for "issues". Shrink said PTSD and sleep med diagnosed moderate sleep apnea. Both had me surprised.

Spouse statement is all I have as no barracks time with "buddy's"

Have come across a couple VA decisions that granted Sleep Apnea as secondary to PTSD.

What's the thought on submitting that as part of justification?

[Stretch]

Maybe you could request, from you Dr., to send you to a sleep study.

[usmcman001]

I am in the same boat right now. I havent started a claim for Apnea but was diagnosed with it after a sleep study and was given a cpap by the VA. They basically told me good luck with getting claim approved for SC. I have PTSD and have seen a few times people being awarded secondary to this. Let me know what you come up with.

[Slick]

Maybe you could request, from you Dr., to send you to a sleep study.

Stretch,

had sleep study done after I retired. Diagnosis "severe obstructive sleep apnea".

waiting on my primary to see if she'll do a NEXUS letter.

also waiting on a call back from Dr Bash- thanks JBasser

[Slick]

I am in the same boat right now. I havent started a claim for Apnea but was diagnosed with it after a sleep study and was given a cpap by the VA. They basically told me good luck with getting claim approved for SC. I have PTSD and have seen a few times people being awarded secondary to this. Let me know what you come up with.

will do.

[Slick]

Update- engaged Dr Bash and have been working with him. Concur expensive. He's thorough. After reviewing med records his draft NEXUS ltr included new and updated issues. After I submit paperwork to VA will provide more detailed comments.

In regards to new and updated issues a little confused on the process. Do I just submit NEXUS and expect VA to work that into current deliberation or do I also have to submit updated/new claims. Hopefully that makes sense.

thanks

[Slick]

Update

Claim date: 01/24/2012

The estimated completion date of 05/10/2013 is past due

Status: REVIEW OF EVIDENCE

Been this way for some time.

[Berta]

You asked a very good question........ I am anxious to see what others say to it......

Dr. Bash diagnosed a condition my deceased husband had but I didn't formally claim it because the IMO was specific to exactly what I needed but not clear as to the nexus of the additional condition.

It appears it would fall under my 1151 issues, so no time limit on filing that type of claim .....yet... and it might require an addendum to explain the medical rationale for the statement in the IMO.....

and it might not even affect the overall rating in the last award letter I got.

Dr. Bash has done that in other veterans cases I am aware of,...he has diagnosed additional conditions that might be SCable but they would require a formal claim on the veteran's part..I think...unless they are obviously secondary ,in his IMO, to established SC conditions. ????

hope others opine on this....

[Slick]

anyone have experience when a condition is included in an IMO, but has not been claimed? Will the VA include it or does it have to filed for seperately

[broncovet]

OSA is tough to get and its about to get tougher.

Source:

http://www.stripes.com/news/veterans/va-looks-to-tighten-sleep-apnea-rating-schedule-1.226772

However, you might be able to service connect OSA as secondary:

http://www.sleepfoundation.org/article/sleep-topics/depression-and-sleep

As far as getting SC for conditions as evidenced in the IMO/ C and P, I recommend:

If in doubt apply for the benefit of the condition raised. You can reference the IMO as evidence. To try to get the VA to grant an eed based on an informal claim for increase via a medical exam is very tought.

[RichL]

I suggest that in addition to a medical opinion that you get a strong buddy letter. Your wife can also write a letter for you explaining the symptoms she observes when you are sleeping. This too should help to support your claim.

[harleyman]

If the VA examiner finds a condition and annotates the condition is found on exam, and if the condition is recognized by VA as being the natural progression of an existing service connected disability, then the VA is "suppose" to service connect the condition if enough evidence is available, or "invite" a claim for the condition and order a DBQ exam. The effective date for the new condition is the date, the condition became apparent by documentation in the records, or date the condition was found on examination. Usually the date of the examination, but it could be earlier if the condition is shown in the Veteran medical records prior to the exam.

An example: Veteran wants an increase in his diabetes mellitus. He has a VA exam. The exam reveals the Veteran has diabetic peripheral neuropathy of the legs. The examiner is suppose to the complete the DBQ's for BOTH diabetes and for diabetic peripheral neuropathy of the lower extremities, at that time of the exam. The reports are sent to the RO and the rater gets the DBQ exams for diabetes mellitus and for neuropathy of the lower extremities. The examiner conducted the "extra" exam for the lower extremities, because peripheral neuropathy is considered by VA, to be a recognized known progression of diabetes.

If a private exam is submitted by the Veteran, a knowledgeable VSR or RVSR would review the report and order the DBQ examination for Diabetic peripheral neuropathy, but only if the Veteran is already service connected for diabetes. If a condition is found in an independent private medical opinion and it is not accepted by VA as a known progression of a service connected disability they will not invite a claim or make a rating decision on the issue as it was not officially claimed.

[Berta]

I hate to sound 'picky' but can you please give us some citations in the regs in 38 CFR or M21-1MR, for what you had stated as the what the VA is "supposed " to do regarding Service connecting the condition or 'inviting' a claim?

You are using common sense, but for some of us hard core long term claimants, we find often common sense alludes the VA and there is nothing in 38 CFR or M21-1MR that allows a rater to make a medical decision on a secondary ,for example, without some actual medical input (such as C & P{ exam results)

"If a condition is found in an independent private medical opinion and it is not accepted by VA as a known progression of a service connected disability they will not invite a claim or make a rating decision on the issue as it was not officially claimed."

I do agree with that,in part, but a good IMO doctor, following the IMO criteria we have here at hadit, would surely support the secondary condition with a full medical rationale, allowing the veteran to formally claim it with good evidence from the IMO.

I am not trying to be argumentative here at all........

The AO presumptives ,the chronic presumptives,a POW status,or an Atomic vet claim , etc could contain medical evidence of certain things that would trigger the VA to possibly do what they are "supposed " to do....as you said, but I never saw the phrase 'supposed to do 'in any established VA case law.

This statement too bothers me:

"The examiner conducted the "extra" exam for the lower extremities, because peripheral neuropathy is considered by VA, to be a recognized known progression of diabetes."

Sure the VA recognizes lots of additional disabilities as known progressions of a primary SC disability...... you are right.....

but they will only recognize that, in the only way it matters to a claimant, by virtue of a SC rating,

if the VA has the medical evidence to back up the association of diabetes to PN.

And of course if the PN was diagnosed prior to the SC diabetes, the vet has a heck of a time proving the SC diabetes caused the PN, unless they can get a strong IMO from an outside independent doctor and, even in that case, the claim could still be denied. Unless maybe the VA misdiagnosed the DMII in the first place and its EED should have been prior to the diagnosis of the PN.

I have had personal claims experience in that scenario. And a strong IMO to support that specific claim I had.

Anxious for others here to comment. I might be completely misunderstanding you Harleyman and apologize if I am.

[harleyman]

Berta, I will not be able to respond to your questions until Sunday or Monday, but I will get back to you and provide resources in support of the post. I, will have to get them from work, as I don't keep this material at home. I thought you wanted a real "world" answer to the question of, "anyone have experience when a condition is included in an IMO, but has not been claimed?" I will get back to you, and yes, I do work for VA.

[red]

The way I have understood it is that it has to be tied into something that happended to you while you were in the service. Such as a nose injury. But it has to be documented. It is tough to get it unless you can do this. Good Luck.

[harleyman]

Berta, I decided to respond to you on some of this. These are real world responses and not meant to be legal. This is how it is going in the trenches. It may not be what everyone thinks it should be, but this is what is happening and how things are processed and worked, and how IMOs are are handled at my RO. Sometimes it helps to understand what is going on, it doesn't mean it's right.

I hate to sound 'picky' but can you please give us some citations in the regs in 38 CFR or M21-1MR, for what you had stated as the what the VA is "supposed " to do regarding Service connecting the condition or 'inviting' a claim?

I will provide either 38 CFR, M21-1MR or fast letters or training material for you next week.

You are using common sense, but for some of us hard core long term claimants, we find often common sense alludes the VA and there is nothing in 38 CFR or M21-1MR that allows a rater to make a medical decision on a secondary ,for example, without some actual medical input (such as C & P{ exam results)

I don’t believe there is anything in my post that says a rater is making a medical decision on claim for S/C or a secondary condition. Raters cannot do anything without reviewing medical records or DBQ examination report of findings. Raters do not make medical decisions. Raters determine if examinations are warranted based on the STRs and the evidence submitted by the Veteran in support of his claim. Then the reports of findings are reviewed and a decision is made to S/C or deny, if S/C then a percent level is determined according to the CFRs.

"If a condition is found in an independent private medical opinion and it is not accepted by VA as a known progression of a service connected disability they will not invite a claim or make a rating decision on the issue as it was not officially claimed."

I do agree with that,in part, but a good IMO doctor, following the IMO criteria we have here at hadit, would surely support the secondary condition with a full medical rationale, allowing the veteran to formally claim it with good evidence from the IMO.

Even if the IMO says the Veteran has XYZ condition, if it was not claimed by the Veteran, it will not be rated. It “could” be deferred. Sometimes a “nice” rater will call the Veteran to see if he wants to open a claim for a condition, but under normal circumstances, if the IMO is received and the Veteran has not already claimed a condition that the IMO addresses, unless it is a known progression of an already service connected condition, or a presumptive condition, it will not be rated until the Veteran files a claim for the condition. Berta, please don’t take offense, I am just trying to give you the “real world” answers of what truly happens at the VBA when it comes time for development action or rating decision. It may not always be printed in “black and white”, even at the VA things are left for interpretation each RO has their own supervisory guidance things can very a bit from one RO to the next.

I am not trying to be argumentative here at all........

Please, neither am I. I am just letting you know what happens when IMO’s are received. If there is no claim for the condition that may be addressed in the IMO, the VA employees are NOT allowed to solicit claims, unless it is a presumptive condition or a “VA accepted known progression of a already S/C condition. (The rater can S/C a claimed condition and a known progression of that condition on the same decision, even an initial decision).

The AO presumptives ,the chronic presumptives,a POW status,or an Atomic vet claim , etc could contain medical evidence of certain things that would trigger the VA to possibly do what they are "supposed " to do....as you said, but I never saw the phrase 'supposed to do 'in any established VA case law.

Berta, the term, “supposed to do” was meant to acknowledge to you and the other members at Hadit that, VBA and VAMC’s for that matter, do not always do what they are supposed to do. In a real world everyone working claims would be 100% trained and know their jobs inside and out and never make a mistake. Of course, you and I and everyone on this board know, VA makes plenty of errors. NOT always on purpose. Errors occur when you have trainees learning new jobs who haven’t got the experience that seasoned employees have. We have hired over 600 new employees at my RO in the past 4 years. It takes a bright rater about 3 years to be good at their job and about 5 to be accomplished and about 10 to be considered for a DRO position. There are going to be errors and thankfully, there are people like you and others that see the errors and can help the Vet. To that I say, thank you.

If you re-read my post I did provide a clarifying statement about presumptive conditions. These conditions will be rated if the veteran’s service qualifies him for the presumptive condition, he has a diagnosis of the condition, the rater will rate the condition based on the evidence of record and if the rater feel the condition may be worse since the evidence was received he will ask the development team to order a new exams. This is a different situation than and IMO that addresses an issue that the Veteran did not claim. Which is what I thought the POST was about.

This statement too bothers me:

"The examiner conducted the "extra" exam for the lower extremities, because peripheral neuropathy is considered by VA, to be a recognized known progression of diabetes."

Sure the VA recognizes lots of additional disabilities as known progressions of a primary SC disability...... you are right.....

but they will only recognize that, in the only way it matters to a claimant, by virtue of a SC rating,

if the VA has the medical evidence to back up the association of diabetes to PN.

I am not sure of your question here. In my example, I stated the Veteran was asking for an increase in his S/C diabetes mellitus. During the exam the examiner found DM PN, and completed the DBQ for DM PN of the lower extremity. The rater will enter the information contained in the DBQ report of findings and will rate the DM PN as S/C because DM PN is a known progression of DM II, even though the Veteran did not claim DM PN and maybe didn’t know he had the condition, or that it was due to his DM . In this scenario the DM could have stayed at the same S/C percent, however; the veteran may have received an increased based on the examiner’s report that the Veteran now had a diagnosis of DM PN a progression of his S/C DM.

Your statement about PN before diabetes mellitus is service connected is a whole other topic. PN is a presumptive condition if diagnosed and claimed within one year of discharge. PN is not the same as DM PN. Two different conditions and etiology, however, rated under the same criteria.

As you stated, DM PN would be denied as related to DM because the Veteran does NOT have a diagnosis of DMII. The VA’s position, (please note I personally do not agree with) is, you cannot have a secondary condition, if you do not have a diagnosis of a primary condition. This really is a topic all on its own, and IMO’s really are about the only way to get favorable results, and even then it is an uphill battle, usually won on appeal.

And of course if the PN was diagnosed prior to the SC diabetes, the vet has a heck of a time proving the SC diabetes caused the PN, unless they can get a strong IMO from an outside independent doctor and, even in that case, the claim could still be denied. Unless maybe the VA misdiagnosed the DMII in the first place and its EED should have been prior to the diagnosis of the PN.

I have had personal claims experience in that scenario. And a strong IMO to support that specific claim I had.

Berta, with the onset of the “evaluation builder” and the DBQ exams, and the on slot of new raters, you can just about be guaranteed, that a VA OPINION exam will be ordered, (which is not the same as a VA increase exam), to determine if the VA examiner agrees with the IMO or not. Sometimes they do or sometimes they don’t, but VA raters do not usually accept an IMO without the DBQ, and will generally order a VA opinion referencing the Veteran private medical records and or IMO. Not because the rater doesn’t believe the Veteran’s doctor, but because Corporate has mandated the use of the evaluation builder and DBQ exams. Most new raters do not know how to rate accurately without the DBQ. Rating is now based on primarily Data entry for musculoskeletal and mental and PTSD issues, to name a few. Please note exams for increase do not require an opinion; we just need to know if the S/C condition has worsened. IMO’s require an opinion to determine if VA agrees with the IMO. Very seldom is an IMO used to rate as a standalone picture of the status of the Veteran at this claims level. Appeals and DRO reviews are a different story. That is why there are so many remands. Just saying, please don’t kill the messenger.

Berta, I appologize, I thought I put in a sentence about presumptive in my original post- I had deleted it before posting as I did not want to confuse the topic about IMOs. Please disregard my post here saying please reference my original post about presumptive. My error.

Edited July 7, 2013 by harleyman (see edit history)