Sleep Apnea - Appeal or New Claim

[John Royal]

Greetings everyone! 

Seeking advice on how best to proceed with my Sleep Apnea Claim. I retired in 2011 after 21 1/2 years of Naval service and I am currently SC at 40%. I need advice on whether to appeal my Sleep Apnea Denial (VA letter dated 3/9/12) or to file a new claim, since the 1 year to appeal has come and gone. In July of 2012, I received Progress Notes (VISTA Electronic Medical Documentation) that stated a diagnosis of Sleep Apnea diagnosed while on Active Duty with a plan for Sleep Services Consult. I assume the Progress Notes that I have came from my SMR, which I located where it said I had Mild Obstructive Sleep Apnea and it is confirmed from the Sleep Study performed (referred by VA to Civilian Provider) on 1/7/2011. I just had another Sleep Study (referred by VA to Civilian Provider) in April of 2016 and the results are that I have Moderate Obstructive Sleep Apnea and need a CPAP (which the VA will issue - soon I hope, as I have been dealing the effects of OSA for years now). I used eBenefits to get myself to the 40% level and wanted advice on whether I should submit an Appeal or New Claim using eBenefits or via a DAV/American Legion etc. 

 

Very Respectfully,

John Royal "JR" (USN Chief Petty Officer, Retired)

[broncovet]

The answer to this is, "How much do you need money?"   Calculate how much you would lose by trashing your effective date not appealing.  Example:

You applied in 2011, and, lets say you are successful and eventually get your benefits, the only difference there is the effective date, 2011 (appeal) or 2016 (new claim).  Thats 5 years of retro.  Lets further assume that you get your 50 percent increase from 40 to 70 percent.  Dont get me started on VA fuzzy math, I know these dont add up.  

Im showing a single vet at 587 with 40%, but at 70% 1334, a difference of 747 per month.  747 times 60 months is $44,820 you will lose by reapplying and not appealing.  The question is can you afford to throw away 44k?   If you can, go ahead and file your nod, and donate most/all the money to tbird and hadit.  If, however, you need the money, then give tbird a smaller portion to help other vets and keep the rest for you and your family.  

Edited June 2, 2016 by broncovet

[broncovet]

Even with what I just explained, sometimes your friendly VA employee or VSO will advise you to file a new claim.  Its unclear if they get a commision on that, Im sure they do, its just not "directly".  Its like the people who work at a car company...who tell you they "are not on commission".  Trust me, if they dont make their employer money and dont sell cars, or provide a service to their custormers, they will get fired, and lose "bonuses".  

[silverdollar22]

You stated that you were denied in (VA letter dated 3/9/12).  Then said (In July of 2012, I received Progress Notes (VISTA Electronic Medical Documentation) that stated a diagnosis of Sleep Apnea diagnosed while on Active Duty with a plan for Sleep Services Consult.)  This was after your denial and before you had been issued a C-PAP machine which is in the works still.  You cannot get rated without the use of a C-PAP machine.  If i'm not correct someone will chime in and correct me!!  Sorry i'm seeing a new claim in your future after you get your machine.  JMHO

[John Royal]

Thanks for both of your comments brothers! I am grateful for the advice/guidance and look forward to seeing what others have to say as well.

[Andyman73]

John Royal,

Welcome to where the wild things are(aka; Hadit.com)!

You will have to file a new claim, since the 1 year appeal/NOD window ran out on 03/09/13.  You were DXd on AD(!!!golden ticket!!!) with mild OSA.  Consider yourself blessed, 1 of 100. We other 99% were not DXd until after our AD time, and have a significant mountain to climb.

With your DX from AD, and new sleep study showing worsening SA, and RX of Cpap, you can file a FDC.

Like mentioned above, you need RX of Cpap to get a rating, which will be 50%.

I think the only way you will be able to get any retro is to compare your most recent sleep study results with your AD sleep study results.  While they DXd you with mild SA, if the numbers are anywhere near the numbers of your new study, there may be an argument made that the original DX was downplayed. But if the numbers are too far apart, just count your blessings that you already have the nexus of the AD DX.

Oh, by the way, what was the reason they denied your initial SA claim?  That will give us a clearer picture as to what's going on.  Also, if you don't have it, request your C-file ASAP!

Semper Fi

[John Royal]

Thanks for the reply and information Andyman73! I hope you are right about the Golden Ticket. I have read many posts of the struggles of our other brother's/sister's and it is very sad, to say the least! 

Denial Reason: The evidence does not show a diagnosed disability. Explanation: The VA Medical opinion found no persistent disability.

I was thinking of requesting my C-File, as I am very curious as to how/why they denied. Is there a way to request my C-File through eBenefits or do I just mail/fax it?

JR

  

Edited June 2, 2016 by John Royal