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Is It Cue?


abhusal

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Hello everyone,

Under Benefits Delivery at Discharge (BDD) Program, I filed claim for PTSD, Short Term Memory Loss, and Unspecified Sleep Disorder. I had C&P only with VA contracted Mental Health Provider. I never had C&P for the unspecified sleep disorder claim. I was awarded 30 % for service connection for anxiety disorder NOS (also claimed as short memory loss and sleeping disorder). Symptoms (reported to physicians and documented) related to sleep disorder while in service continued after discharge and documented well on VA medical record. After 5 years discharged from service, I had sleep study and diagnosed as Sleep apnea (ICD-9-CM 780.57). I am using APAP now.

My concern is: With same symptoms in service continued after discharge and diagnosed with Sleep Apnea. When I filed a claim for sleep disorder 5 years ago, if VA had conducted sleep study on me, I would have diagnosed with Sleep Apnea while in-service. VA failed to do it.

Isn’t it a CUE?

post-17115-0-09758100-1410184405_thumb.p

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I could only see one page of the report but am surprised that the diagnosis was not PTSD.

It appears they lumped the sleep disorder in with the Anxiety rating.

What diagnostic code did VA use for the 30% anxiety rating? 9413?

Have you formally filed a sleep apnea claim?

I hope others chime in on this one.......it puzzles me.

Is there more to the second page?

Then again sleep problems, nightmares etc go hand in hand with anxiety disorders as well as with PTSD (an anxiety disorder) yet Sleep Apnea is
a physical disability, compared to a mental health symptom of sleep problems,caused by a stressor.......

Do you have a copy of the C & P exam that warranted the 30%?

What is the date of this decision , Abhusal, and did you file a NOD in time?



"General Rating Formula for Mental Disorders
Rating
Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 100
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 70
Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 50
Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30
Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 10
A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous "
medication. 0"
source : VASRD

The rating criteria is the same for almost all MH disabilities.

This does list chronic sleep impairment, but that is not the same as OSA.

I am anxious to see what others thinks here.

CUE is like the Watergate Question...what did they know and when did they know it....I wonder if in fact they did not have enough info to even consider the sleep disturbances are now diagnosed as sleep apnea.In that respect it might not be basis for a valid CUE.

If you do file the OSA claim as a new claim do you have a copy of your SMRs to support that for a direct SC award?

Many CUEs are based on SCs that are finally SCed and rated properly but should have been in past decisions.

And many many PTSD and Anxiety NOS vets have sleep disturbances that never trigger a specific C & P on that basis.

I felt your other CUE had a good potential for award but this one....I am not sure......

others here might see something I dont see..... but definitely file for the OSA.







BTW , I guess there is no status on this CUE yet:



Are you sure the VA received it?




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Hello everyone,

Under Benefits Delivery at Discharge (BDD) Program, I filed claim for PTSD, Short Term Memory Loss, and Unspecified Sleep Disorder. I had C&P only with VA contracted Mental Health Provider. I never had C&P for the unspecified sleep disorder claim. I was awarded 30 % for service connection for anxiety disorder NOS (also claimed as short memory loss and sleeping disorder). Symptoms (reported to physicians and documented) related to sleep disorder while in service continued after discharge and documented well on VA medical record. After 5 years discharged from service, I had sleep study and diagnosed as Sleep apnea (ICD-9-CM 780.57). I am using APAP now.

My concern is: With same symptoms in service continued after discharge and diagnosed with Sleep Apnea. When I filed a claim for sleep disorder 5 years ago, if VA had conducted sleep study on me, I would have diagnosed with Sleep Apnea while in-service. VA failed to do it.

Isn’t it a CUE?

VBA failing to provide a C&P relates to the duty to assist.

Duty to assist is not applicable to a submission for CUE.

No this is not a CUE.

There was no claim of record for OSA - so there would be no duty to assist by providing

a C&P for OSA.

The rating decision considered your sleep difficulties and rolled it into your evaluation for

your SC'd anxiety disorder.

The evidence posted states,

"You report that you have trouble sleeping described as difficulty staying asleep, screaming out in your sleep,

and nightmares".

FWIW - the symptoms above do not relate in any way to OSA so, again no reason for a C&P for OSA.

Hope this helps in understanding.

jmho

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I could only see one page of the report but am surprised that the diagnosis was not PTSD.

It appears they lumped the sleep disorder in with the Anxiety rating.

What diagnostic code did VA use for the 30% anxiety rating? 9413?

Have you formally filed a sleep apnea claim?

I hope others chime in on this one.......it puzzles me.

Is there more to the second page?

Then again sleep problems, nightmares etc go hand in hand with anxiety disorders as well as with PTSD (an anxiety disorder) yet Sleep Apnea is

a physical disability, compared to a mental health symptom of sleep problems,caused by a stressor.......

Do you have a copy of the C & P exam that warranted the 30%?

What is the date of this decision , Abhusal, and did you file a NOD in time?

"General Rating Formula for Mental Disorders

Rating

Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 100

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 70

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 50

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 10

A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous "

medication. 0"

source : VASRD

The rating criteria is the same for almost all MH disabilities.

This does list chronic sleep impairment, but that is not the same as OSA.

I am anxious to see what others thinks here.

CUE is like the Watergate Question...what did they know and when did they know it....I wonder if in fact they did not have enough info to even consider the sleep disturbances are now diagnosed as sleep apnea.In that respect it might not be basis for a valid CUE.

If you do file the OSA claim as a new claim do you have a copy of your SMRs to support that for a direct SC award?

Many CUEs are based on SCs that are finally SCed and rated properly but should have been in past decisions.

And many many PTSD and Anxiety NOS vets have sleep disturbances that never trigger a specific C & P on that basis.

I felt your other CUE had a good potential for award but this one....I am not sure......

others here might see something I dont see..... but definitely file for the OSA.

BTW , I guess there is no status on this CUE yet:

Are you sure the VA received it?

Thank you very much Berta.

I could only see one page of the report but am surprised that the diagnosis was not PTSD. - I have attached the remaining part of the decision.

post-17115-0-97463900-1410209923_thumb.p

What diagnostic code did VA use for the 30% anxiety rating? 9413? - I think it is 9413.

Have you formally filed a sleep apnea claim? - Not yet, I am developing the claim.

Do you have a copy of the C & P exam that warranted the 30%? No I don't have copy of C&P, by the way how do I get it.

What is the date of this decision , Abhusal, and did you file a NOD in time? - 10/2008, did not file NOD. Back then I didn't know about sleep apnea.

If you do file the OSA claim as a new claim do you have a copy of your SMRs to support that for a direct SC award? - Yes I do have copy of SMR. I have attached the summary of record here. OSA-Medical Record Summary.pdf

Are you sure the VA received it? - I mailed them two weeks ago by USPS- Priority-Certified mail with tracking. I see from tracking that they received mail but haven't heard anything from them.

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VBA failing to provide a C&P relates to the duty to assist.

Duty to assist is not applicable to a submission for CUE.

No this is not a CUE.

There was no claim of record for OSA - so there would be no duty to assist by providing

a C&P for OSA.

The rating decision considered your sleep difficulties and rolled it into your evaluation for

your SC'd anxiety disorder.

The evidence posted states,

"You report that you have trouble sleeping described as difficulty staying asleep, screaming out in your sleep,

and nightmares".

FWIW - the symptoms above do not relate in any way to OSA so, again no reason for a C&P for OSA.

Hope this helps in understanding.

jmho

Thank you very much Carlie.

It make sense. But I think I did have sleep apnea symptoms while in service and they continued post-service. Please look at this attachment OSA-Medical Record Summary.pdf to see if I should file CUE or regular claim.

Thanks

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The 30% addressed chronic sleep impairment (from mental health)

but does not address OSA - as a claim for OSA had not been made.

I do not see a CUE at this time.

jmho

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  • HadIt.com Elder

I agree, it is not a CUE, but and this is just an educated guess, I think you can win a claim for Sleep Apnea and eventually win a retro date, to your original claim "but" it'll take you 4-10 yrs to do it. You'll need to win the SA claim and then go for an EED.

A while back the VA won a court case that established that they do not need to deny all claims that were originally claimed because if the claim was not mentioned in the decision, then it is considered denied. I'm not sure what case it was but I feel it was a real setback for claimants. jmo

pr

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I agree, it is not a CUE, but and this is just an educated guess, I think you can win a claim for Sleep Apnea and eventually win a retro date, to your original claim "but" it'll take you 4-10 yrs to do it. You'll need to win the SA claim and then go for an EED.

A while back the VA won a court case that established that they do not need to deny all claims that were originally claimed because if the claim was not mentioned in the decision, then it is considered denied. I'm not sure what case it was but I feel it was a real setback for claimants. jmo

pr

Thank you very much Phillip Rogers for reply.

This is the details of the claim I filed: post-17115-0-61871700-1410816089_thumb.p

Decision by the VA: post-17115-0-64567000-1410816224_thumb.p

Could you please look at the attached and your suggestions please!!!

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Thank you very much Phillip Rogers for reply.

This is the details of the claim I filed: attachicon.gifClaims filed to VA.png

Decision by the VA: attachicon.gifDecision.png

Could you please look at the attached and your suggestions please!!!

That makes it very clear that a claim for SC of OSA was not of record for consideration.

Also, very clear that a sleeping disorder was considered, SC'd and compensated for

as a part of your anxiety disorder.

OSA is a completely different issue and going from the decision posted, a claim for SC of OSA

was not before the VBA decision maker, as a part of the rating decision.

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  • HadIt.com Elder

What I see is they combined the sleep problems w/the anxiety disorder and you didn't appeal it. Now, you have to win the OSA claim and then pursue the earlier effective date(EED). You can try combining the OSA and the EED but most times it's easier to win the OSA claim and then go after the EED. jmo

pr

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Thank you very much Carlie and Phillip Rogers for your replies.

Back then I didn't know what the OSA is, so I just applied for Sleep disorder. Now I am diagnosed with OSA , Unspecified Sleep apnea (ICD-9-CM 780.57). Now my question is:

Should I still file for Sleep Disorder or Sleep Apnea. Which has the best chance to win based on my symptoms-Medical Record Summary.pdf

Thank you very much.

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Thank you very much Carlie and Phillip Rogers for your replies.

Back then I didn't know what the OSA is, so I just applied for Sleep disorder. Now I am diagnosed with OSA , Unspecified Sleep apnea (ICD-9-CM 780.57). Now my question is:

Should I still file for Sleep Disorder or Sleep Apnea. Which has the best chance to win based on my symptoms-Medical Record Summary.pdf

Thank you very much.

If you have medical evidence DXing the OSA and the doc reviews your SMR's

and states something like - they have done this and in their opinion your OSA

is at least or more likely than not, related to active duty as evidence by

XYZ shown on active duty records dated XX/XX/XXXX (medical rationale),

you should be good for direct SC.

It would not hurt at all if the doc also stated something in regards to your

anxiety disorder continues to be inclusive of sleep interference, but in their opinion

your OSA is a separate issue from that due to XYZ, (medical rationale).

The doc's opinion and rationale would be different for OSA secondary to a

SC'd issue.

Just for the record - pr was my mentor :-)

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Yes...I agree too, with Carlie and PR.

OSA is different then sleep disturbances which most vets with any anxiety or depression disorder can have, as symptomatic of the MH issue.

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PR, did you mean Deshotel, Fed Circuit case?

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  • HadIt.com Elder

PR, did you mean Deshotel, Fed Circuit case?

I don't think so, as I don't think I had even heard of this one. The original was the "deemed denied" case and I believe the VA won that. I don't know what's happened since. To me, the deemed denied case violated so many rules, that I couldn't believe that it passed.

pr

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