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

[Cessnabc]

On ‎2‎/‎23‎/‎2016 at 11:52 AM, broncovet said:

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. 

Bronocovet,

 

I was able to contact my surgeon and he provided the following letter.  He is now retired an in a private practice, but he was more than willing to review the documentation and provide what he could.

 

 

 

Edited July 6, 2016 by Cessnabc

[broncovet]

I like it.  But, I would have liked it better if the doc gave a "medical rationale" as to why/what he thinks caused apnea in service.  In other words, did you get hit in the face or throat, was it 36 hours shifts disrupting sleep, was it depression, etc.  I would have liked it better if he stated on what date he examined you..you know, Nov. 14, 2007 instead of just "November".

Do you know this doc well enough to have him address this medical rationale and the date of exam?  

 If your doc has sleep medine experience, especially, this is very good.  

This evidence may be enough to "reopen due to new and material evidence" per 38 cfr 3.156.