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sleep apnea secondary to COPD

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ballistics-guy

Question

I have obstructive sleep apnea (diagnosed by the VA)  I think the VA will deny my claim regardless of the evidence I present.  This post is lengthy, but I thing is may be helpful to others in the same situation.

I have COPD determined to be service connected by the VA

I find a BVA case that identical to my circumstances:

In Citation Nr: 1228135 Decision Date: 8/15/12  , the Board of Veterans Appeals found that sleep apnea was aggravated by the veterans service-connected COPD and that service connection for the Veteran's obstructive sleep apnea was warranted.  In this case:
- The VA determined the veteran had service-connected COPD with emphysema, (that's me)
- There was no evidence that the Veteran suffered from this sleep apnea during his active service. (mee too)
- The veteran was a former cigarette smoker and had mild dyspnea on climbing two flights of stairs (one flight for me)
- A C&P exam concluded that the Veteran's obstructive sleep apnea is less likely than not related to his in-service dyspnea and other respiratory complaints. (me too)
- Despite that, the board rules that since the veterans OSA was exacerbated by his service connected COPD, and therefore, OSA was service related.

Also, I find this case and show it to the C&P examiner:

In another case: BVA9415915 DOCKET NO. 93-01, the board of Veterans Appeals found “Obstructive sleep apnea is causally related to service-connected chronic obstructive pulmonary disease“. They found the veteran to be entitled to service connection for obstructive sleep apnea as secondary to service-connected chronic obstructive pulmonary disease.
-  In this case, the veteran had been previously granted entitlement to service connection for chronic obstructive pulmonary disease. The VA found that obstructive sleep apnea, which presented only after the veteran was discharged, was causally related to service-connected chronic obstructive pulmonary disease and granted entitlement to service connection for chronic obstructive pulmonary disease. 

I showed this case to the C&P doc. She ignored it. I got a decision letter. I'm not considered service connected. Is there anything I can do?

I point out that the VA’s own web page suggests a deleterious link between OSA and COPD

 The VA/DoD “Clinical Practice Guideline for the Management of Chronic Obstructive Pulmonary Disease” indicates that:
“Patients with COPD may also have a longer latency to sleep onset, more frequent disruption and stage changes, and decreased sleep efficiency than in the general population”. 

“Sleep disorders also seem to increase as patients with COPD age”

Patients with signs or symptoms of a sleep disorder should be referred for a diagnostic sleep evaluation, which may include diagnostic tests and diagnostic interviews. 

Congestive heart failure, cardiac ischemia, or gastroesphageal reflux are listed  on the VA’s own web page as comorbidities of COPD.

 

I show these articles from the medical literature:

1. Marin, Jose M., Joan B. Soriano, Santiago J. Carrizo, Ana Boldova, and Bartolome R. Celli. "Outcomes in patients with chronic obstructive pulmonary disease and obstructive sleep apnea: the overlap syndrome." American journal of respiratory and critical care medicine 182, no. 3 (2010): 325-331.
2. McNicholas, Walter T., M.D., "Chronic obstructive pulmonary disease and obstructive sleep apnea: overlaps in pathophysiology, systemic inflammation, and cardiovascular disease." American journal of respiratory and critical care medicine 180, no. 8 (2009): 692-700. COPD is a major risk factor for cardiovascular morbidity and mortality, even after adjustment for confounding risk factors such as age, smoking, and body mass index (BMI) (7, 11).
3. Owens, Robert L., and Atul Malhotra. "Sleep-disordered breathing and COPD: the overlap syndrome." Respiratory care 55, no. 10 (2010): 1333-1346.
4. Weitzenblum, Emmanuel, Ari Chaouat, Romain Kessler, and Matthieu Canuet. "Overlap syndrome: obstructive sleep apnea in patients with chronic obstructive pulmonary disease." Proceedings of the American thoracic society 5, no. 2 (2008): 237-241
5. Chaouat A, Weitzenblum E, Krieger J, Ifoudza T, Oswald M, Kessler R. Association of chronic obstructive pulmonary disease and sleep apnea syndrome. Am Rev Respir Dis 1995;151:82-866. 

What I got back was "With regards to whether the veteran's COPD caused his sleep apnea , we can look to the experts. Recent articles on this subject make the point that COPD and sleep apnea are common and thus, by chance alone , some individuals will have both diagnoses . Result from the Sleep Heart Health Study showed that sleep apnea and hypopnea syndrome (SAHS) was not more prevalent in those mild COPD than in those without COPD."

My response (which I'm still working on) is 

COMMENT: This same study, these same experts showed that even for patients without atrial fibrillation, the risk for ischemic stroke was very significantly increased in the population of patients with OSA. 

The most cited research that indicates that "There is no relationship between chronic obstructive pulmonary disease and obstructive sleep apnea syndrome” is from Bednarek et.al.  First, and very significantly, this was a very small population study (N=365 males) of randomly selected people from voting rolls in WARSAW, POLAND.   Among the population,  16% of the population were diagnosed with OSA; 10.7% were diagnosed with COPD.   Conclusions from that paper were drawn from statistics for roughly five males among a random selections of voters in  WARSAW, POLAND.  

Conclusions from Bednarek et.al. were drawn from statistics for roughly five males among a random selections of voters  WARSAW, POLAND.

In Warsaw, Poland, roughly 11% of the population were diagnosed with COPD; in the United states, the number of people diagnosed with COPD is roughly HALF OF THAT.  

One need to be careful in the application of statistics.  Meaningful statistics concerning American veterans can not be drawn from these data.

FOOTNOTES

Bednarek, Michal, Robert Plywaczewski, Luiza Jonczak, and Jan Zielinski. "There is no relationship between chronic obstructive pulmonary disease and obstructive sleep apnea syndrome: a population study." Respiration 72, no. 2 (2005): 142-149

Mannino, David M. "COPD: epidemiology, prevalence, morbidity and mortality, and disease heterogeneity." CHEST Journal 121, no. 5_suppl (2002): 121S-126S.

The veteran is not a medical doctor, but he is an MIT educated engineer and he is qualified to apply statistics to data.

 

 

BOTTOM LINE APPEARS TO BE  THIS FROM THE C&P EXAM SUMMARY: "Given the veteran's other risk factors, there is insufficient evidence to say that COPD caused the veteran's OSA. "
COMMENT:

“Given the veteran’s other risk factors” is assumed to mean weight and neck size.  However, as shown below, neck size and weight are critically flawed indicators, the probative value of this statement must be decreased.

According to the Mayo clinic(http://www.mayoclinic.org/diseases-conditions/obstructive-sleep-apnea/basics/risk-factors/con-20027941), risk factors for OSA include
"Being Overweight. Around half of people with obstructive sleep apnea are overweight."
COMMENT:
Half. Meaning fully 50% of people with OSA are overweight. Therefore, since 40% of American men are overweight (Nguyen Dang M., and Hashem B. El-Serag. “The epidemiology of obesity.” Gastroenterology Clinics of North America 39, no. 1 (2010): 1-7.), as a risk factor, patient weight is useless

More to the point, the probative value of these assertions of risk is actually proven to be negligible by the statistic presented.

 

To further illustrate the difficulty of citing this statistic, consider the study conducted by Lettieri et.al. where it was shown that among patients at the Walter Reed Army Medical Center, Washington, who had  undergone bariatric surgery at Walter Reed and who had significant weight reduction over a period of one year, only 4% of them had resolution of OSA.  Lettieri shows that if the supposed cause is removed, the result remains.  That, is confounding, from a statistical perspective.  One could say “without resorting to mere speculation, it’s not possible to say what it means when (an already dubious) risk is removed, and nothing happens”.  On the other hand one might conclude if the (an already dubious) risk is removed, and nothing happens”, “it’s time to reconsider the risk.”

Having a Large Neck. The size of your neck may indicate whether you have an increased risk. A Thick Neck may narrow the airway and may be an indication of excess weight. 
COMMENT: Here, neck thickness is stated irrespective of stature. Clearly, however, a 17” neck circumference on a 5-foot tall person should be expected to have different ramifications for airway restriction than a 17-inch neck circumference on a 6-foot 5-inch person.  More significantly, since a thick neck is stated to be “an indication of excess weight”, the probative value of neck circumference (stature notwithstanding) should be assumed to have precisely the same probative weight as being overweight (NAMELY, ZERO).

One early and well cited study found that neck circumference was an indicator of OSA grouped metrology data  for men and women TOGETHER.  They found the mean neck circumference of non-OSA patients to be 39.1±3.7 cm and for OSA patients to be 41.2±3.5 cm.  For those of us who buy our shirts in the U.S. the non-OSA group ranged from 14”-15.4 in, and the OSA group ranged from 16.2 -17.6 in.  A 6-foot 5-inch tall man who wears a size 14 or 15 shirt is dangerously underweight.  The statistic is seriously flawed because it fails to recognize that men and women have different stature, and grouping metrology data for them together is frankly, stupid. Failure to account for stature makes the result incredible; to suggest that a 6-foot 5-inch man like myself should have a neck circumference of 14-inches is simply incredible.

 Finally, I point out:
The combined disease of COPD and OSA is so well known it has it’s own name among clinicians.  A simple Google search for ““Overlap Syndrome” OSA COPD” yields 10,400 hits about sleep disordered breathing and COPD.   Overlap syndrome is well known to exacerbate the pernicious diseases of COPD and OSA, beyond what might occur if either existed alone.

I'm at the RO-level now.  Is there anything I can do to get the VA to consider the evidence?

 

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Get an independent medical opinion from the physician treating you for COPD linking it to SA.  Consult the information here on hadit regarding how to structure the IMO and what it needs to address.

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The VA treated me for SA, and the doctors in the Boston VA Medical System won't do an IMO.  I get what you're saying and I've asked by cardiologist to write a letter for me (I know the requisite buzz-words). 

Too, I feel like a child asking my doctor for a note to get me out of school.  I presented what I've come to understand to be "probative" evidence; I support my claim with analysis and with pertinant citations to the Law, to VA precedent, to medical research, and to common sense.

I guess I don't understand the laws for evidence in the VA system.  I read things like:"The VA has a duty to “sympathetically read” a claimant’s pleadings and “sympathetically develop the veterans's claim to its optimum”.  (Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000); Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).)  

"When there is an approximate balance of positive and negative  evidence regarding any issue material to the determination of  a matter, the Secretary shall give the benefit of the doubt  to the claimant"  38 U.S.C.A. § 5107 (West 2002); see also  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990)

"To deny a  claim on its merits, the evidence must preponderate against the claim" (see Alemany v. Brown, 9 Vet.App. 518, 519 (1996))

All of that is talk.
Just talk.  
You say your Fancy Dan talk.
I spit on your Fancy Dan Talk.  
You is Denied.
Ya hear me boy. ...  

Or at least that's what this process is starting to feel like to me.  

I'm guessing a IMO will cost me $1000 in Massachusetts (since an initial office visit to a specialist cost about $450 (w/o insurance). I need at least five (as many as eight) of them.  I'm asking for compensation for 

Ruptured Pectoralis Major Muscle (already approved)
Tinnitus  (already approved)

Supraventricular Arrhythmia  (Atrial Fibrillation)  (already approved but with issues) 
Acne Rosacea      (already approved but with issues)
Chronic Obstructive Pulmonary Disease        (already approved but with issues)

Left Hemidiaphragm Paralysis    
Ischemic Heart Disease  

Obstructive Sleep Apnea       
Coexisting Respiratory Conditions      
Surgical Scar Near Left Caracoid Process
    

I'd pay the $5000-$10000 if I thought it would make a difference.  On the other hand if the VA can ignore the law with impunity, why would getting a note from my doctor(s) convince them to do the right thing?

I guess my question is: "Should I assume the RO will deny my claim no matter what I do or say, and I should document my case as best I can an hope the BVA is more reasonable.? If not them, the Court?

 

Thanks for the help 

phil
 

Edited by ballistics-guy
poorly worded
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This is just my opinion.  I would gather together whatever evidence is available to you and if it has not yet been submitted to the RO, submit it.  If you pay for an IMO, make sure that the physician is board certified in that specialty and that he/she has personally examined you.  If you've already received an SOC, this new additional evidence will trigger a supplementary SOC, aka SSOC.  Of course, you can wait to see what the RO decides, and then get your IMO to submit with your Board appeal, to see if the expense becomes necessary.  You would then write to the Board stating that you are waiving your right to have the RO review the new evidence; I'd just let the Board handle things from that point on.  We've had to appeal almost every award my husband's received to the Board.  So, yes, I would assume the worst, that the RO will deny and you'll need to appeal it to the Board.  When it reaches the Board, you'll have to have all your evidence on the table there at the point it's up for a decision.  That's not to say the Board doesn't get it wrong.  I've always tried to act on the assumption that every claim has the potential to end up at the CAVC.  If you get what you want without having to appeal to that level, all the better but at least you were prepared for the worst.

Also, once you file an NOD, I recommend that you try to find an attorney to represent your appeal to the Board.  If you are denied by the Board and end up at the CAVC, you know that you can no longer add new evidence, and that the Court can only consider evidence that was before the Board at the time of its decision.  I don't believe in approaching the CAVC pro se because you can bet you'll be facing an army of VA lawyers.  Your attorney would then have a history with you as a client and would be in a better position to help protect your interests.

Edited by lotzaspotz
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You have gotten good advice.  I have had a sleep apnea claim for about 5 years, and they FINALLY did a C and P exam, (upon appeal)  where the examiner offered an unfavorable opinion.  

IN my appeal, I "attacked" the credentials of the examiner.  That is, you need to know the examiner is presumed to be competent absent a challenge to the credentials by the Veteran.  

My C and P examiner admitted to me she had little experience or training in  sleep apnea.  She was an MD, but I challenged that her opinion was "not competent" due to the fact she did not have the requiste training or experience in sleep disorders in my appeal.    

The DRO denied my sleep apnea again, with the RO coming back that this was a remand and the BVA did not require "specialized" experience (The board remand required a  C and P exam for sleep apnea), so this doc was ok, in the RO's opinion.   

  Im almost 100% certain that this flimsy excuse will just about "automatically" get me a remand for a new C and P with a competent examiner, with experience in sleep disorders.    Otherwise, I could ask someone with a PHD in American History to write me an IMO "that, in his professional opinion, my sleep apnea was at least as likely as not caused by military service".  

 

 

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