Do I have grounds for a CUE?

[Cessnabc]

I recently received a denial from the VA for obstructive sleep apnea.  I retired from the Marine Corps in 2008. 

I am service connected for: ( Not all are listed, just gulf war and ENT type)

Allergic Rhinitis With Nasal Polyp

Mild Obstructive Pulmonary Disease (Environmental Hazards in Gulf War)

Sinusitis (I had sinus surgery in 2015) 

 IBS (Environmental Hazards in Gulf War) 

Tinnitus

 

In Oct, 2007 I was referred for a sleep study for snoring and excessive daytime sleepiness (EDS).  I had a sleep study done that had the following conclusion:

(Sleep Care of Wilmington) There were 4.0 respiratory arousals, 4 snore arousals, 30 periodic limb movement arousals and 41 spontaneous arousals.  Respiratory events showed 0 central apnea(s), 2 obstruction apnea(s), 0 mixed apnea(2) and 2 hypopnea(s).

Impressions: Normal polysomnogram

Recommendations: 1)  Treatment of snoring with considerations of upper airways patency issues, weight loss, and avoidance of sedating medications or alcohol.  2) Consider multiple sleep latency test for further evaluation of hypersomnolence.  Clinical correlation is suggested.

My PCM referred me to ENT and was scheduled for a Septoplasty at the Naval Hospital Camp Lejeune in Nov.  The operation report shows the following: Preoperative diagnosis: 1. Obstructive Sleep Apnea 2. Deviated Nasal Septum.  Post operative diagnosis. Same.

(Sleep Center) In March 2014, my PCM referred me for another sleep study with malaise, fatigue and symptoms suggestive of sleep disordered breathing.  The study showed Mild OSA, moderate in REM sleep, suggesting CPAP therapy may be of benefit.  I have been on CPAP since then. 

 

Reasons and Basis for Denial:

Service connection may be granted for a disability which began in military service or was caused by some event or experience in service.  Disabilities require three components in order for service connect to be established.  First, there must be an event or diagnosis while on active duty or a diagnosis showing manifestation to a compensable degree within one year after discharge (for certain disabilities/diseases).  Secondly, there must be a present diagnosis with continuity of treatment.  Third, there must be a link connecting the present disability and the disability diagnosis to service.  Service connection may also be recognized for a disability or disease which pre-existed service but was aggravated beyond its normal progression due to military service.  In addition, service connection may be recognized for certain conditions which manifest to a compensable degree following discharge from service.  Service connection may also be established for disabilities which occur as a result of service-connected disability.

Your service treatment records do not show treatment for or diagnosis of sleep condition during service.  You provided reports from Sleep Care of Wilmington and Camp Lejeune Naval Hospital which noted you to have problems with snoring during service.  However, you were not diagnosed with a sleep condition or sleep apnea during service.  Your report from Atlantic Sleep Center diagnosed you with obstructive sleep apnea in March 2014 but did not provide a link between this condition and your military service.  Your VA examination of March 20, 2014 concluded that your current mild sleep apnea was less likely than not a progression of your complaints in service.  On June 12, 2014, you submitted a VA Form 21-526EZ claiming that you sleep disturbances/sleep apnea was the result of Gulf War Unexplained chronic multi-symptom illness.

The "Gulf War Veterans Benefits Act" authorizes VA to compensate any Gulf veteran suffering from a "Qualifying Chronic Disability," resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing either during active duty in the Southwest Asia theater of operation during the Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the theater.  Section 202 of the "Veterans Education and Benefits Expansion Act of 2001" expanded the definition of "qualifying chronic disability" to include (1) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster or signs or symptoms; and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service-connection.  To fulfill the requirement for chronicity, the claimed illness must have persisted for a period of 6 months.  The 6-month period of chronicity is measured from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first because manifest.

At your VA examination of February 10, 2016, (Acceptable Clinical Evidence exam) the examiner reviewed your condition and determined that it is less likely than not related to a medically unexplained chronic multi-symptoms illness related to your Gulf War service.  The examiner stated that your 2007 study showed no evidence of sleep apnea and that it was not until 2014 that such condition was found.  As such, the examiner found no medically unexplained chronic multi-symptoms illness related to your Gulf War service.

Based on these findings, service connection for sleep disturbances (sleep apnea) is denied.

 

My items of contention are:

1.  The denial states that "Your service treatment records do not show treatment for or diagnosis of sleep condition during service."  Does the Ear Nose and Throat Surgeon who diagnosed me preoperative and postoperatively with Obstructive Sleep Apnea count as a diagnosis in service? 

2.  The denial goes on the state that "Your VA examination of March 20, 2014, concluded that you current mild sleep apnea was less likely than not a progression of your complaints in service".  Now you admit that I have the signs and symptoms of sleep apnea (Loud snoring, there were apnea events in the first study but not enough to warrant a diagnosis from the study, Daytime sleepiness)

Any insights / thoughts are greatly appreciated!

Brian

[Berta]

"1.  The denial states that "Your service treatment records do not show treatment for or diagnosis of sleep condition during service."  Does the Ear Nose and Throat Surgeon who diagnosed me preoperative and postoperatively with Obstructive Sleep Apnea count as a diagnosis in service? "

It should if that surgery was done In service.

If this is a private doctor maybe they could provide an IMO.

PS: VA loves terms that are not specific....a 'sleep condition ',to them, is not sleep apnea.

And VA loves to deny GWS claims that do not fall into the GWV Syndrome category.

It pays to be very concise to whatever disability is claimed.

"2.  The denial goes on the state that "Your VA examination of March 20, 2014, concluded that you current mild sleep apnea was less likely than not a progression of your complaints in service".  Now you admit that I have the signs and symptoms of sleep apnea (Loud snoring, there were apnea events in the first study but not enough to warrant a diagnosis from the study, Daytime sleepiness)"

I am not a doctor but I would certainly believe there could be a medical  link between the sinusitis conditions and the polyp condition ,to your sleep apnea .And  possibly between the OPD  condition.

I think this claim was written and filed incorrectly and I hope some vet rep didn't bugger it up.

The SA you are claiming could be a secondary SC condition or even a condition "aggravated" by the SCs, but that would take a strong medical opinion.And would have to be claimed that way. We MUST raise every potential theory of entitlement.

Do you have copies of your complete SMRs and also your Personnel file?

 "Your VA examination of March 20, 2014, concluded that you current mild sleep apnea was less likely than not a progression of your complaints in service". 

What were your complaints inservice? Did your buddies you bunkered with ever complain about your snoring? Were you sleepy on the job in service or ever missed duty due to oversleeping?

  "You provided reports from Sleep Care of Wilmington and Camp Lejeune Naval Hospital which noted you to have problems with snoring during service. " I cant tell if that was noted in your SMRs or they took note of something you said.

Buddy statements are not that difficult to obtain these days with the help of the internet and can help with claims like this.

With 80% now, are you still employed?

if not what statement did VA make as to consideration of TDIU (paid at 100% rate of comp)?

 

[Cessnabc]

Thanks for the response Berta.

The surgery was done at Camp Lejeune in 2007 before I retired in 2008.  Even though I have the VFW as my rep, I have been doing all of my claims by myself.  I could have buggered everything up.  I never tried to tie the sleep apnea to my sinusitis, polyps, or OPD.  I always felt that with the diagnosis from the surgeon while in service would be clear enough...I guess I was wrong!

I do have copies of my SMR.  Which personnel file?  From the VA?  The in service complains were loud snoring, hypersomnolance, and fatigue.  They are documented in my SMR.   Original sleep study states "referred for the evaluation of snoring and EDS (Excessive Daytime Sleepiness).  Surgical Notes state "history of loud snoring, mouth breathing with difficulty breathing through his nose" and the referral for the second states "with malaise, fatigue, and symptoms suggestive of sleep disordered breathing".  My wife complained of my snoring and was sleeping in another room which I think was documented as my snoring causing marital discourse in my SMR.

There wasn't a statement on TDIU probably because I am employed full time.

 

Brian

[broncovet]

Your problem is a "negative" nexus.  Until/unless you fix that problem, you can expect a denial.  The "negative" nexus is found here:

"At your VA examination of February 10, 2016, (Acceptable Clinical Evidence exam) the examiner reviewed your condition and determined that it is less likely than not related to a medically unexplained chronic multi-symptoms illness related to your Gulf War service. "

To refute this statement, you need a positive nexus statment, that is, that your OSA is at least as likely as not related to xxxxxxx  in military service.  You may be able to get a positive nexus statement from an IMO/IME, or possibly from a sleep doc at VAMC, if you ask.  

I recommend you first go check on that February 10, 2016 exam.  Was this a "board certified sleep specialist" making this opinion, or was it some C and P examiner with no sleep medicine experience?  

If it was with an examiner with no sleep medicine/training experience, then you can/should challenge the competency of the examiner.  They are asking for a professional medical opinion, not an opinion from a nurse who read 2 articles on sleep apnea.  But watch the VA deny on that opinion, even tho it may well be what Chris Attig calls "junk science".  An examiner with no medical training/or experience in sleep medicine is not competent to opine on the nexus.  However, this examiner has a presumptive, and is assumed to be competent absent a challenge from you, even if that opinion was from a janitor sweeping the floor if it got entered into your records.  If you dig a bit, you may find out if that examiner was a board certified sleep specialist, in which case that examiner statement could only be refuted by another board certified sleep specialist.  

    My suggestion is you get your cfile, appeal, and take into account what I posted above.   Dont overlook the possibility (or even likeliness) that your sleep apnea was secondary to one of your SC conditions, since those at least "could be" the culprit, but you need a doc to say the sc conditions "at least as likely as not" were the cause of your sleep apnea.  

Edited February 23, 2016 by broncovet

[Cessnabc]

Thanks broncovet.

They VA office at Camp Lejeune contacted me so I will be calling them back to find out who did the ACE exam.  I know it wasn't the lead provider who was supposed to do it because they were called away.  It was given to one of the other providers.  I will see if they will give me that information.  If not, is it in the C-File? I only have 60 days to appeal this decision according to the SOC.

Brian

[broncovet]

Based strictly on what you posted, and no more, I dont see grounds for a CUE, as the decision cited an exam presumed to be competent.  

If its any help for you to know, I recently got a sleep apne denial EVEN WHEN a board certified sleep doc opined, that my OSA was "the result of" (service connected) depression. My denial probably also does not meet the CUE standard of review, either, but Im not concerned about that.  A normal appeal keeps the BOD, while a CUE claim does not.    So, a positive nexus does not guarntee you will win (but it should).  If you meet the criteria, then your claim should succeed.  The criteria for SC is a) current diagnosis b)in service event or aggravation and c) nexus or link between the first 2. 

You fall short in the nexus, as yours is negative.  If you do fix this with, say, an IMO/IME, then you could submit the IMO/IME as new evidence under 3.156, and reopen your claim due to new evidence.  You should also not neglect to challenge the exam, if the examiner is not experinced in sleep medicine. 

Edited February 23, 2016 by broncovet

[broncovet]

You should be able to find out the credentials of the examiner, if you dig.  Go back to your c and p exam office and ask, dont threaten.  

Say, "I was just curious as to the examiner on Feb. 10.  Who was it, and what experience did they have in sleep medicine or were they just a "general" exam?"   

If you can not find out you can still challenge and ask for a CV of the examiner.