Denial of Sleep Apnea without C&P Exam

[Galen Rogers]

Howdy All,

I originally file a claim for Sleep Apnea (OSA) in 2008 after I was diagnosed in late 2007. That was after I retired from the Navy so the diagnosis was never in my military health record. I filed it on my own because my AMvets rep said it would not get approved and he would not mess with it. The VA sent me a request to allow them to contact my doctor directly that I signed and sent back. I knew nothing about a NEXUS letter or lay letters or even the connection with Reflux, Rhinitis, and Sinusitis. A short while later after they contacted my doctor I received the denial letter stating "Not service connected".  Because of my ignorance I accepted that until a few fellow retirees with OSA said they did the same thing but then provided lay letters from shipmates and their wives and their claims were approved. Since then I have read all I could find and have reached out to others for assistance. So my real question is " Would the fact that I was not provided a C&P exam be a basis for a CUE?" The denial came from the Regional VA office.

[Galen Rogers]

I have a NEXUS letter and IMO from Dr. Bash who has helped others and I have seen him referenced here. The NEXUS states it as a CUE because Reflux, Rhinitis, and Chronic Sinusitis have all been linked as contributing to the OSA problem and even cause of. Several medical studies were in existence at the time of the denial that referenced that. The CUE is based on the fact that the required medical evidence was in my records and or available to the VA at the time of my denial and they did not apply the evidence IAW the law at the time. Whether or not the VA will agree is still to be determined. If they screw me on the technicality of me not specifically saying "Secondary" then I will just have to submit a new claim. All I can do is try.

1. Allergic Rhinitis - 0% (currently requesting increase)
2. Reflux - 10% (currently requesting increase)
3. Thoracic Outlet Rt Arm - 10%
4. Thoracic Outlet Lft Arm - 10%
5. Right Knee - 10% (currently requesting increase -2nd surgery since original rating and now require replacement 
6. Total - 40%

I had other issues denied.

1. Chronic Sinusitis (CUE being submitted - diagnosed three separate times in my SMRs and on my retirement physical))
2. Plantar Fasciitis (diagnosed in service but C&P exam denied it because it was not problematic at that time.)
3. Mitral Valve Prolapse (diagnosed in service but C&P exam could not hear it so denied it)

I'm also submitting claims for secondary left knee, cervical spine, and lower back due to a fall caused by right knee buckling. I'm also submitting claim for Hypertension due to OSA (that one will hinge on successful OSA rating), IBS (may just be combined with my Reflux), Tinnitus, asthma (exercise induced), and hemorrhoids (already had one surgery for these). All of this was listed numerous times in my SMRs  just did not know they were ratable and my original VSO wasn't much help  in that arena. My new VSO (moved) says I should submit all of this at the same time. I see him on the 27th. 

[Gastone]

I would expect a relatively long Appeal period. Have you considered running your Denial past a couple VA Lawyers/Agents to get a feel for their enthusiasm? You don't have to sign-up  right away, or ever actually.

[broncovet]

Ok.  Reading the VARO's "reasons and bases" for denial (the last paragraph) contradicts itself.  On one hand the rater said that you had no symptoms in service, but then it said your symptoms were not probative!!  Can you see how the raters statement conflicts itself??  

That is crazy reasoning.  Its like saying, "well I didnt do it, but when I did do it, I wasnt wearing the clothes they said I was wearing."  

Its "one or the other".  You either had symptoms in service or you did not.  If your symptoms were "not probative" then you deserve a reason why they are not probative.  There ARE good reasons why your evidence may not be probative.  For example, if your self reporting is in conflict with other evidence, then your self reporting may not be probative.  (That is, if they caught you in a lie, they wont beleive you on other stuff either)  However, the rater said nothing about your credibility, so you should be able to presume your credibility is good.  

Now, on to competence.  You are probably not (medically) competent to self diagnose sleep apnea, as you are not a medical professional trained in diagnosis and treatment of sleep disorders.  So, you have to have a doc who is medically competent to diagnose your sleep apnea.  But..and this is huge...you ARE competent to self describe symptoms that dont require a medical degree, but are observable by a lay person.  Example:  Snoring.  You dont have to have a medical degree to testify that your buddies complained that you snored.  No doc need to describe snoring.  I recall reading a CAVC case where a judge ruled that a Veteran is competent to describe simple observable symptoms in service.  As an example, if you saw someone get stabbed, then you are competent to say, "yea, I saw him get stabbed..there was blood all over his belly and face".  Of course, you can not diagnose or name the femoral arteriies or nerves that may have been damaged with this injury.  

Focus on the big 3 of current diagnosis, in service event or aggravation, and nexus.  It sounds like you were denied based on "in service event or aggravation", so focus on refuting that.  The rater did not dispute your diagnosis, and he apparently did not dispute your nexus either.  He only disputed documentation of your in service event.  In my opinion, however, he VALIDATED your in service event, however.  It reminded me of a police trick on a dumb criminal.  The cop deliberately told the defendandant he was seen wearing a red coat while robbing the bank.  The defendandant said, "I wasnt wearing a RED coat!  I was wearing a BLUE coat when I robbed the bank".  

The VARO stepped on their necktie, IMHO.  Thats good for you.  

[Gastone]

Bronc, throw another eyeball on the  Denial page 2, Evidence reviewed and reasoning. The Rater clearly states that due to "Isolated Complaints" of Fatigue, Irritability, and Headaches found in R's SMR covering the period 6/1175 thru 2/29/2000 there was no basis for an in-service SA DX, then or now.  I saw no mention by R or the Rater regarding a complaint of Day-Time Somnolence ever presenting while on active duty.            I don't recall R mentioning any continuity of VMC or Private Medical Treatment or continuation of his stated in-service symptoms progressing to Daily, from 02/29/2000 to the date of his actual OSA DX; or if and when Day-time Somnolence presented.    i do believe this is BVA Bound.              One of the CUE Experts needs to opine.

[Buck52]

Why would this be a CUE?

NO EVIDENCE TO SUPPORT THIS CLAIM/ NOT EVEN A SECONDARY CONDITION TO AN ALREADY SC. Condition.

looks like to me he was denied for lack of evidence or any other type evidence. he can't prove he had osa OR ANY SLEEP DISTURBANCE /(MEDICAL RECORDS) WHILE IN MILITARY.

OBVIOUSLY THE RATER OPT THAT NO C&P WOULD NOT  BE NECESSARY BASED ON NON EVIDENCE OF RECORD.

I don't see where a CUE would be?

Edited April 22, 2018 by Buck52

[broncovet]

Be sure on your CUE filings.  What regulation(s) did they violate, and how did they violate them?  

A cue claim has to be pled with specifity.  The error has to be outcome determinative.  Example:  There is no guarantee a c and p exam would have changed the outcome.  

The cue error has to be undebatable, and not a judgement call.  And it has to be based on the regulations at that time, not the new regulations.