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 appreciate everyone's comments and I hopefully have not offended anyone. The CUE is based on the fact I did have 3 seperate conditions diagnosed in service that all are directly related to either causing or playing a large part in causing OSA Allergic Rhinitis, Reflux, and Chronic Sinusitis).  Also there were medical studies and documents published at the time that linked  those items in a cause and effect relationship with OSA. That is well documented in my records. Also I did have sleep disturbances listed in my SMRs (fatigue, headaches, difficulty sleeping). I had 11 separate visits to sick call  in my SMRs that were symptoms of OSA. Finally my IMO and NEXUS letter provided by a reputable doctor supports all of that.  The CUE is that they did not apply the evidence at the time in my SMRs or the medical literature/study results in existence at the time, and obviously did not provide me a fair probative evaluation as required. So again like I said earlier it will be up to the VA to decide if my request has merit. 

Here's what I think it falls under. I may be wrong.

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 4—SCHEDULE FOR RATING DISABILITIES

Subpart A—General Policy in Rating

§4.3   Resolution of reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter.

[40 FR 42535, Sept. 15, 1975]

Edited April 22, 2018 by Galen Rogers
Added additional details

[Buck52]

UNLESS YOU HAVE A SLEEP SPECIALIST/OR QUALIFIED DR STATE IN FULL DETAIL THAT YOUR Allergic Rhinitis, Reflux, and Chronic Sinusitis IN HIS/HER PROFESSIONAL OPINION IS LIKELY AS NOT THE CAUSE OR RELATED TO YOUR PRESENT SLEEP CONDITION...YOU WILL PROBABLY  BE DENIED.

The years in between will be what gets you denied.

Along with other evidence such as a sleep apnea or osa diagnoses and use a currently prescribe a C-PAP/BIPAP MACHINE

you may be granted OSA and other conditions as well.

I PERSONALLY  JUST DON'T THINK YOU HAVE ENOUGH EVIDENCE FOR THEM TO APPROVE AN OSA  S.C. OR A RATING

I don't want to be negative and I hope they do approve you.

I'm just going by some of the decisions I have read and decisions from the BVA.

 I see a Remand on this

to readjudicate the issues of entitlement to service connection for gastroesophageal reflux disease, sinusitis, and a deviated nasal septum, to include as secondary to a service-connected disability. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with an SSOC. An appropriate period of time should be allowed for response.

Edited April 22, 2018 by Buck52

[Galen Rogers]

Buck52 understood. My IMO and NEXUS specifically states the links between them and that I am medically required to use the CPAP  every night.  The original claim had the sleep study results from 2007 that diagnosed me with OSA. I also have a new sleep study from 2 months ago that also diagnosed OSA. Of course the VA may tell me to pack sand.  I will stay positive about it. I had the symptoms and problems for years in service and afterwards but like I said before the corpsman or doctor told me to "get over it" because everyone was tired because of optempo, etc. I now do have the lay letters that provide evidence of the issues, snoring, complaining about headaches and constantly dozing off. So if my CUE is not approved then I will just submit a new claim for it with all of the additional evidence. At the end of the day I know now I was not fully prepared to submit this claim back in 2008. I did not understand about lay letters, NEXUS letters, and appealing. MY VSO refused to submit so I did it on my own. So he was of no help when it was denied. Still at the end of the day the responsibility falls in my lap and no one else's. I am grateful this website exists and that I found it. It has helped open my eyes about a lot of things regarding the whole VA claims process.

[EODCMC]

Galen,

 

I think what everyone is implying is that you believe they didn't look at and apply all the evidence in your file. This is cause for an appeal or NOD but not a CUE and probably a good one. You were on the right track in your opener. If a C&P were required and they didn't do one, you probably have a basis for a QUE. But, it's not required.  The RO, who is rarely a medical person did not find the words Obstructive Sleep Apnea (OSA) and made a ruling. I will add this, however. Based on what you are saying, a C&P examiner would have probably given a "less than" probability opinion. My experience is they take very little time, nor research... and they take the path of least resistance. They are not working on your behalf.This one was probably always heading toward an appeal.

You can ask for a reconsideration. This usually only works if it's clear. I would get my ducks in a row and prepare for a NOD. I think you have a good chance.

[Buck52]

 You may be granted a 30% S.C. Rating for these conditions but to be granted the OAS I believe you need more probative evidence to the OSA while in military.

And As broncovet mention in the above post I agree if you file CUE

How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time.

Edited April 22, 2018 by Buck52

[Buck52]

Elder member Gastone is pretty good with OSA Claims  he may can point you in the right direction or get his opinion of what you have submitted here to give you some pointers...as needed evidence or will the evidence you have submitted be enough to grant the OSA.

Please don't take offence to my my post   I am not an expert on OSA Claims  I'm just stating my opinion and I do hope I am wrong...I do want you to be approved.