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Denied Sleep Apnea / Need Advice For Nod


AmicusBrief

Question

On 2 Nov 2012, I've received Sleep apnea Denial Reason: The evidence does not show a current diagnosed disability. Explanation: Your service treatment records do not contain complaints, treatment, or diagnosis for this.

I've submitted supporting documents from three buddies, wife, and medical statement from sleep doctor ( MD, Ph.D) saying: Given the findings of the sleep studies and history of weight changes (more in the past), diabetes and reported symptoms, it is more than likely than not, that the patient developed sleep apnea while in service. My sleep problems started 12-15 years ago.

Also i included documents from a current sleeping study conducted by the American Sleep Clinic, were my sleeping problem was diagnosed as Obstructive Sleep Apnea.

Note:

1) I am not able to point to any specific problems in my medical records. All three buddies attest to my sleep problems while serving in the Army. 2) The sleep study was conducted in 2011; my initial claim was filed Dec 2010 and denial letter was received on 2 Nov 2012.

3) The sleep study doctor written a detailed medical statement about the current findings, sleep apnea onset, insomnia, sleep study reports, discussed follow up visit and overall assessment.

Prior to submitting my NOD; maybe i should do a sleep lab follow up and ask for another IMO statement.

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Did they even give you a C&P for Sleep Apnea?

Did you have any hypertension in service or any other medical conditions that co-exist or are contributory to Sleep apnea?

"the evidence does not show a current diagnosed disability" If you provided them with a medical opinon from a sleep doctor that states you have sleep apnea the preceeding statement is factually wrong.

Check the evidence listing in the decision and ensure that they listed the medical opinon as evidence.

If they didn't, you need to dig out your signed receipt (post card showing who signed for it), and in your NOD point out they didn't include all the evidence that was in their possession.

If you are relying on buddy statements (no obvious medicial evidence linking besides weight gain) you need to go to BVA. If that is the case, I would advise not going the DRO route (I doubt any DRO is going to grant apnea on a buddy/ies statement).

Best of luck!

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  • HadIt.com Elder

If your SMR's do not show treatment, DX or complaints of sleep apnea, and that is what they are basing their denial on then the buddy letters are about all you have. If, however, they are saying you don't have a current DX of sleep apnea based on VA or private records that would be a factual error. The VA sure does not like to SC sleep apnea after a vet is out of the service unless he was treated for it while in the service.

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first off. they are confusing two elements of service connection.

the first is a disability. you provided evidence of that.

they say you don't have a disibility because it does not show in your smr.s totally wrong. you can be diagnosed many years after service without having complaints of the condition in service and still be service connected.

my smrs say nothing about sleep apnea but the c&p doctor related my current sleep apnea with exposure to solvents in service. i also submitted some internet articles that he referenced. I also had an imo from dr bash. all supporting service connection. will the va do the right thing?

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  • HadIt.com Elder

Rdawg

I am very interested in what Dr. Bash had to say. I, too, have sleep apnea and I believe it is due to weight gain from anti-depressants and pain meds from the VA. I also have DMI due to AO. I am wondering if I could get the apnea as secondary to mental conditions and DmII and PN (which makes it hard to exercise). I take a lot of pills from the VA that slow me down including blood pressure meds and meds for cad which SC. I just developed apnea in the last few years since these things were SC'ed. I don't mean to hijack this thread but your post really rang a bell I had not considered and I don't think Rover considered it either.

John

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Did they even give you a C&P for Sleep Apnea? No

Did you have any hypertension in service or any other medical conditions that co-exist or are contributory to Sleep apnea?

The doctor wrote the following: Although there is no prior documentation of sleep apnea, it is likely that Mr. Robinson has had sleep apnea at greater disease severity at earlier time points, when he was obese with a BMI well exceeding 30kg/m2. It is well documented, that the likelihood of having sleep apnea >10 events/hour is greater than 50 % in men (more likely than not) if the BMI exceeds 30 kg/m2. The fact he has diabetes, witnessed apneas and loud snoring increases the likelihood of having sleep apnea to >90%.

Finally, the narrow upper airway is consistent with an anatomical predisposition that may have made Mr Robinson more susceptible to the development of sleep apnea with weight gain, and it is possible that he has had sleep apnea even when he was in the 30ties. Thus, it is more likely than not, that Mr. Robinson has had significant sleep apnea while in the service.

Insomnia: Although back pain may have contributed to insomnia, we strongly believe that the insomnia is also related to Mr Robinson sleep apnea.

Also I was denial diabetes but i will address in a separate thread.

"the evidence does not show a current diagnosed disability" If you provided them with a medical opinon from a sleep doctor that states you have sleep apnea the preceeding statement is factually wrong.

Check the evidence listing in the decision and ensure that they listed the medical opinon as evidence.

If they didn't, you need to dig out your signed receipt (post card showing who signed for it), and in your NOD point out they didn't include all the evidence that was in their possession.

If you are relying on buddy statements (no obvious medicial evidence linking besides weight gain) you need to go to BVA. If that is the case, I would advise not going the DRO route (I doubt any DRO is going to grant apnea on a buddy/ies statement).

Best of luck!

Edited by Rover (see edit history)
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Sorry to harp on this, did they list the ime/imo/doctor's letter in the evidence section of the decision. This is a fairly important fact/status to ascertain.

The EVIDENCE section does list supported letters and sleep study to include letters from veterans (three buddy statements).

Denial reason and Explanation is listed below:

Denial Reason: The evidence does not show a current diagnosed disability. Explanation: Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.

Thanks to all for responding in preparation to write the NOD.

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I've noticed that Dr. Bash name has been mentioned on this forum. My question, "Who is he and should i use him for my appeal?"

I engaged Dr Bash. He's thorough and has helped numerous folks through the process. I had my original SMR's which he went through and worked up the IMO.

For the sleep apnea he worked mine as secondary. I submitted all paperwork a few weeks ago.

He's expensive, but I guess that's a relative term. I was extremely satisfied with what he provided, but truth will be in the pudding when I get decision from VA

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Rover in your NOD be sure to point out that there "IS A CURRENT DIAGNOSED DISABILITY", Sleep apnea was Diagnosed by Dr. XXXX on MM/DD/YY, and this medical fact was communicated to the Veterans Administration in the letter/medical opinion dated MM/DD/YY that is listed the Veterans Affairs decision dated MM/DD/YY, under evidence. I would immediately request a post decision hearing, Ask them to grant this hearing immediatley. Indicate an immediate hearing is necessary so you can decide the best way to move forward with your claim.

Its crap like this that really pisses me off! There should be some kind of penalty assesed to VA empolyees that so completely and totally screw up a decision this bad. Since the fool that rated this can't or won't read (as evidenced by a declarative statement they made that is totally contradicted by the evidence they have listed), a vet gets to spend another 3-5 years working this through the appeals process.

Don't give up!

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I have some fear Dr. Bash is becoming a red flag for the VA. I certainly grant that his IMOs are detailed and supportive. I have a friend who is the risk manager for all of the junior colleges in my state. He told me the doctors that write repeated worker comp opinions favorable to the claimant are discounted by the commission.

Here is a post from the gulf war veterans site.

"May I recommend just a slight bit of caution as I have heard rating specialist comment on the "long distance doctor" referring to Dr. Bash. I'm not saying that he isn't good but the VA views him as too biased to the side of the veteran so if they don't put as much weight on his opinion, that is why. "

Edited by deanbrt (see edit history)
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It's time to start writing OSA NOD. Thank you all for posting past & future helpful tips.

I'm still wondering if i should contact sleep doctor for follow up? In order to receive another IMO letter. In two months, it will be two years since i conducted my first sleep study.

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I would ask for a post decision hearing. State that you need the hearing to discuss/better understand the VA decision and how the evidence was evaluated. If they will meet with you and go on the record as to why the first opinion from your sleep doctor was not acceptable. It will help you to not repeat the same mistake.

You have a year from the decision date to NOD.

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I have a little experience in sleep disorders medicine. However, my information should only be considered as anecdotal, not medical or legal advice.

You may be able to support your claim that you suffered from sleep apnea while in service with documentation from observers. If your buddies can document that they observed you snoring and experiencing apneas or hypopneas while asleep it may add creditability to your claim. Just as a person that had a seizure wouldn't necessarily remember the event, people with sleep disorders don't often know that they are affected. They only know they are always tired and have daytime sleepiness. Patients are usually the worst historians when it to comes to sleep disorders. Spouses and other familiy members often provide a better overview of the patient's sleep habits. Also, keep in mind that memory loss of arousals associated with apnea is typical. Many patients have hundreds of arousals yet remember nothing. Snoring is the cardinal sign of sleep apnea and is a prime indicator of partial airway obstruction. Other indicators are hypertension and elevated hemoglobin or hematocrit due to chronic hypoxemia. Use of alcohol and/or sedating drugs can exacerbate sleep apnea by depressing the hypoglossal nerve that controls airway patency. You might look for these other things in your records. Adding the current clinical diagnosis to the in service observations paints a larger picture of the preexistence of the malady before confirmation by the polysomnogram.

Edited by AmicusBrief (see edit history)
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I have a little experience in sleep disorders medicine. However, my information should only be considered as anecdotal, not medical or legal advice.

You may be able to support your claim that you suffered from sleep apnea while in service with documentation from observers. If your buddies can document that they observed you snoring and experiencing apneas or hypopneas while asleep it may add creditability to your claim. Just as a person that had a seizure wouldn't necessarily remember the event, people with sleep disorders don't often know that they are affected. They only know they are always tired and have daytime sleepiness. Patients are usually the worst historians when it to comes to sleep disorders. Spouses and other familiy members often provide a better overview of the patient's sleep habits. Also, keep in mind that memory loss of arousals associated with apnea is typical. Many patients have hundreds of arousals yet remember nothing. Snoring is the cardinal sign of sleep apnea and is a prime indicator of partial airway obstruction. Other indicators are hypertension and elevated hemoglobin or hematocrit due to chronic hypoxemia. Use of alcohol and/or sedating drugs can exacerbate sleep apnea by depressing the hypoglossal nerve that controls airway patency. You might look for these other things in your records. Adding the current clinical diagnosis to the in service observations paints a larger picture of the preexistence of the malady before confirmation by the polysomnogram.

With my claim, I did submit three buddy statements to include statements from wife and sleep doctor.

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I due have just one question for you. Are you currently useing a CPAP machine? If you are make sure you let the VA know that. If you do get SC for Sleep Apena use of a CPAP machine is a rateing of 50 percent.

Good Luck

Jim

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I due have just one question for you. Are you currently useing a CPAP machine? If you are make sure you let the VA know that. If you do get SC for Sleep Apena use of a CPAP machine is a rateing of 50 percent.

Good Luck

Jim

Yes, I'm using the CPAP machine since Feb 2011 - immediately after the 2-day

sleep study.

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I would ask for a post decision hearing. State that you need the hearing to discuss/better understand the VA decision and how the evidence was evaluated. If they will meet with you and go on the record as to why the first opinion from your sleep doctor was not acceptable. It will help you to not repeat the same mistake.

You have a year from the decision date to NOD.

Post Decision Hearing................Maybe I should...........Now, "how do i start this process?"

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