Appeal Question

[joeyjoeyb]

Hey everyone,

I had my hearing with a judge at the ATL regional office on Sep 12 on my appeal (face to face). I just found out that the transcript was done on the 17th of October. (that seems fast?) My questions is...am I getting close to a decision from the BVA?

[carlie]

Sleep apnea has to be diagnosed with a sleep study. This study has to be done while on active duty. This is like any other disability, has to be diagnosed while on active duty.

The above is simply,not true.

Where in the world do you get,

"This is like any other disability, has to be diagnosed while on active duty."

To begin with,very, very few disability's have to be diagnosed while on active duty.

http://www.va.gov/vetapp12/Files5/1236895.txt

The Veteran claims that sleep apnea was incurred in service.

A private sleep studies report dated in October 2001 confirms a diagnosis of sleep

apnea syndrome.

In a November 2007 letter, A. Turkay, M.D., reported that the Veteran carried

long-standing diagnoses of fibromyalgia (for which he is service-connected) and

chronic fatigue syndrome and that it was possible that the obstructive sleep apnea

may cause symptoms of fatigue and arthralgias reminiscent of fibromyalgia syndrome

as well as chronic fatigue syndrome.

In a November 2007 statement, the Veteran's wife of 20 years reported that she first

noted that the Veteran was experiencing sleep difficulties between 1996-1997.

She reported that since that time, his episodes of snoring, coughing and choking

have increased in severity.

In a May 2008 letter, G.B. Goodman, M.D., reported that he could not prove that the

Veteran's sleep apnea is service-connected, but he could not exclude the possibility

either and that it was certainly possible.

In a March 2010 letter, P.W. Strum M.D., reported that a review of the records suggests that while the Veteran was recently diagnosed with sleep apnea, his symptoms extend

back to his active military service.

Dr. Strum reported that the Veteran's history suggests that he did not have these

symptoms prior to his military service and have worsened since then.

stated that it is not unusual that this would become apparent well into the

development of his symptoms, and only in retrospect, do problems that were previously

ignored make sense.

Dr. Strum felt that the Veteran had irregular sleep/wake cycles and abnormal work hours that could have contributed to his sleep disorder.

He also indicated that the Veteran suffered a head injury in service which he stated

is not uncommonly associated with sleep disorders.

Dr. Strum concluded that the Veteran's combination of obstructive sleep apnea and his

narcolepsy/narcolepsy-like symptoms disabled him to a certain degree and may

at least as likely as not be related to and connected to his service

in the Armed Forces.

The Veteran was afforded a VA examination in June 2011 and the examiner confirmed a

diagnosis of obstructive sleep apnea. In providing a nexus statement and rationale,

the examiner essentially copied portions of Dr. Strum's March 2010 report but

incorrectly reported that the Veteran's history suggests that he did have symptoms of

sleep apnea prior to his military service.

The examiner concluded that the Veteran's sleep apnea has not been aggravated by

his military service beyond the normal progression of the disease.

In adjudicating a claim, the Board is charged with the duty to assess the credibility

and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481

(Fed. Cir. 1997). In such an assessment of medical evidence, the Board can favor

some medical evidence over other medical evidence so long as the Board adequately

explains its reasons for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998);

Owens v. Brown, 7 Vet. App. 429, 433 (1995).

The United States Court of Appeals for Veterans Claims (Court) instructed that the

Board should assess the probative value of medical opinion evidence by examining the

medical expert's personal examination of the patient, the physician's knowledge and

skill in analyzing the data, and the medical opinion that the physician reaches.

See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005); Guerrieri v. Brown, 4 Vet.

App. 467, 470-71 (1993).

The record includes the opinion provided by the June 2011 VA examiner who incorrectly

transcribed a statement from Dr. Strum's report that the Veteran's history suggested

that he did have symptoms of sleep apnea prior to his military service and then went

on to conclude that the Veteran's sleep apnea has not been aggravated by his military

service beyond the normal progression of the disease.

However, the Board notes that the medical evidence in this case simply does not

indicate that the Veteran's sleep apnea preexisted his active military service.

Thus, the VA examiner's statement as to preexistence and aggravation of the Veteran's

sleep apnea is not consistent with the evidence of record.

The VA examiner also stated, however, that the Veteran's symptoms did extend back to his period of military service.

Further, the Board turns to the favorable opinion provided by Dr. Strum.

Initially, the Board notes that Dr. Strum's opinion is partially based on the Veteran's reports of sleep problems beginning in active service. In this case, the Board finds that there is no reason to question the credibility of the Veteran's statements noting sleep problems during his active service.

Thus, the Board finds that Dr. Strum accurately reported the Veteran's medical history and also indicated that the Veteran's service records were reviewed.

Based on certain conditions experienced during service such as irregular sleep/wake

cycles and a head injury suffered in basic training, Dr. Strum found that the Veteran's obstructive sleep apnea was related to or present during service.

The Board finds that this opinion, based upon a review of the facts and medical history, is the most probative opinion of record.

As such, the Board finds that the evidence of record is in equipoise as to

the issue on appeal.

With resolution of doubt in the Veteran's favor, the Board finds that the evidence

of record supports service connection for obstructive sleep apnea.

38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).

[broncovet]

Carlie is correct. The Veteran must have a) Current diagnosis, b) evidence of in service event or aggravation, and c) a nexus between the two.

There is no requirement for an in service diagnosis.

The nexus statement is the doctors statement that links the current diagnosis to an event in service.

One example should suffice. In the case of Hepatitus C, there was no test for this prior to 1989. Does this mean that a Vet could not have gotten hep prior to 1989 in the service? No. Not at all. He could have picked up the malady from infected blood or other risk factors. And, he could be SC for it even tho there was no medical tests for it prior to 1989.

There are several "latent" diseases, and Hep C is one of them. It often takes many years for the hep c virus to do real damage. Hearing loss is another. You do not have to be "diagnosed" with hearing loss in service to be SC for hearing loss. You could have been exposed to loud noises but your hearing loss gradually progress and you not have real bad symptoms until many years later. You were "exposed" in service, but not "diagnosed" until much later, sometimes.

[carlie]

Heck - many, many vets are SC'd for either DDD or DJD

and the SMR's don't show that as a diagnosis.

Their SMR's from 10, 20, 30 or more years back might mention something

like sprained ankle or knee.

Many times that is enough in the SMR to document an injury -

but not provide a diagnosis.

Years down the road the vet finally begins to get some treatment

for the injury - shows the medical provider copies from the SMR's

documenting the injury.

Medical provider writes an opinion that the current diagnosis of

XXX, is as likely as not the result of XXX, documented in SMR's,

which provides their medical rationale . . .

WA - LA, issue granted as SC'd.

[broncovet]

Chuck is also correct, for the reasons already posted. In the case of sleep apnea, this was not a diagnosis done with Viet nam Era Vets. CPAP's were not in use until 1981, according to Wikipedia:

http://en.wikipedia.org/wiki/Sleep_apnea

Still, it is highly possible that Vietnam Era Veteran's have OSA even tho they were not diagnosed in service. They still could have had symptoms of OSA, tho not necessarily a diagnosis.

The ratings scales rate symptoms, not diagnoses or treatments....if your disease or injury is asymptomatic, you wont be compensated for it.

[joeyjoeyb]

I did receive a copy of my transcript in the mail on Friday. My file is not at the BVA yet. My biggest question is....how does my file get to the BVA? Does the BVA request it? Does the RO just send it when they get to it? Can someone please shed some light?

[broncovet]

Joey

Your file has to be "certified" (by the Regional Office) to go to the BVA. I think I read where that takes an average of 546 days, which is pretty incredible as it should take 2 hours.

When your file does arrive at the BVA, mine was "with VSO" for another 18 months. This is why the VCS says it takes 4.4 years for a trip to the BVA.