Obesity and Sleep Apnea Concurrently

[tk3000]

 

Over the years, I gained weight which I attribute at large to my physical disabilities (left leg with hardware) and ongoing pain which makes exercising more difficult, currently my BMI is of 32.6 which is classified as obese. There has been cases within the VA whereby mental healhty issues have been grounds for a successful obesity claim, and one also have mental healty issues so this is another ground for the same claim of obesity (the rational being that depressive disorder would increase ones food intake). But it seems to me that the physical disability issues are a stronger case. Anyhow, both disabilities make for an even strong claim of obesity. I am not sure how a claim of obesity is adjudicated at the VA, but I am not morbid obesity by any means.

 

Nonethless, my claim for obesity is a door for another claim; claim for sleep apnea. Recently I was diagnosed with sleep apnea through a sleep study, I have had the same study done in 2011 whence I was more fit and the result was negative but this time around the result indicated a diagnosed of sleep apnea with need of a respirator in order to sleep.

So both the obesity claim and that of sleep apnea would have to be concurrent, and the later dependent on the second.

 

The following are some of the arguments I plan on adding to my claim:

 

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In this particular case the third criteria applies since there is a nexus between the veterans physical disabilities (physical limitations and pain plus depressive disorder) and his obesity and henceforth the development of sleep apnea.

Therefore sleep apnea is proximately due to the veterans obesity disorder ( greatest risk factor for sleep apnea) which in different degrees of causality is a consequence to the following veterans established service connected disabilities: mainly left leg physical condition with pain which hinders physical exercise more difficult and depressive and anxiety disorder which increases one food intake (Obstructive sleep apnea and other symptoms of OSA are associated with probable major depression, regardless of factors like weight, age, sex or race, according to a new study from the Centers for Disease Control and Prevention.).

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Does that sounds like a sound and quick claim to through even the notoriously dynfunctional VA claiming process? 

 

Edited July 7, 2018 by tk3000

[tk3000]

2 hours ago, broncovet said:

Ok, according to your post you have confirmed you  have a current  diagnosis of sleep apnea.  Good, that is 1 out of 3 required for service connection.  

Now, for the other 2 Caluza requirements:  

Do you have documentation of an "in service event" or aggravation?  (Caluza element 2)

And, do you have a nexus (Doc statement that your sleep apnea is at least as likely as not due to an in service event?  This would include if your doc says your sleep apnea was caused by (a service connected condition).   (Caluza element 3).  

If you have these 3 documented, then you are good to go.  If not, you will need them documented before you can get sc for sleep apnea.  

I do not have documentation of service event or aggravation, but neither did I have for my heartburn/gerd condition when I initially file the claim and the C&P examiner stated that the "condition was as likely as not caused medication intake for a service connected condition".  Besides there is a clear cause-effect relation and with a little bit of induction any physician would come to that conclusion (not 100% sure, but at least as likely as not) But I understand that having a nexus stating a clear relation between one and another would make the claim much easier.

Though I have plenty of documents (medical notes) about my left leg condition with pain and difficulties of mobility and also have plenty of medical records/notes relating my obesity to my pain and thus difficulties of engage in physical activity. And obesity is number one cause of sleep apnea.

Thanks broncovet

[silverdollar22]

I have a doctor that did my DBQ and he worded it as (due to or aggravated by)! The (aggravated by) is the wording that I have researched to be affective in explaining the connection between SA and your existing condition.

[Gastone]

TK, get hot on tracking down the BVA Docket Numbers of the (2) SA Secondary to Gross Obesity, they aren't precedent setting, but you need them for specific reference. You found them once, shouldn't be that difficult.

 

[broncovet]

You posted,

Quote

I do not have documentation of service event or aggravation, but neither did I have for my heartburn/gerd condition when I initially file the claim and the C&P examiner stated that the "condition was as likely as not caused medication intake for a service connected condition".

Because you got away with that last time, does not mean it will be overlooked this time, also.  Caluza element 2 (in service event or aggravation) is a decision made by the decision maker.  We suggest not leaving stuff to chance when possible.  

I dont know the facts as to why an in service event was not in your file and you got SC anyway.  It could have been there all along, you just did not read it.  (Not everyone reads their entire cfile).  Or, you could have had a generous rater who gave you the benefit of the doubt.  Remember, you can testify on your behalf.  And, the VA can decide to accept or reject your testimony as long as they give reasons for doing so.  

In my case the board decided that my testimony was "credible" because it was consistent with other facts.  (I was seeking Sc for hearing loss).  I had reported loud jet engine noise.  The Board was not there with me, so they did not know whether or not I was actually exposed to loud engine noises (aircraft), and my "rate" (MOS) does not generally mean a high level of noise exposure.   So, I showed them a picture of the location of my old barracks, which was just about 100 yards or so from the end of the San Diego Airport.  (It was a google map picture, with the old barracks).  

In the BVA decision, they stated, pretty much, that my testimony was credible as it was consistent with my records.  That is, they said they beleived me, because it made sense.  

I recalled when in training/boot camp having the instructor  stop speaking whenever a plane flew by, which was about every 10 minutes.  The noise was deafening.  The planes had to clear our barracks..it was the first building they had to clear off the runway.  

So, my own testimony established an "in service event".  I am competent to describe a noisy airplane flying overhead.  The audiologist testified she thought that (noisey military aircraft) was "at least as likely as not" the reason for my hearing loss.  A Veterans own testimony, if they decide its consistent with the facts, is enough, sometimes.  The key here is they have to beleive you.  They can also choose to doubt your testimony, especially if it conflicts with other known facts.  Mine did not conflict.  

[tk3000]

10 hours ago, Gastone said:

TK, get hot on tracking down the BVA Docket Numbers of the (2) SA Secondary to Gross Obesity, they aren't precedent setting, but you need them for specific reference. You found them once, shouldn't be that difficult.

 

Gastone, I believe I found it again. The following is the url:

https://www.va.gov/vetapp13/Files5/1340261.txt

[tk3000]

8 hours ago, broncovet said:

You posted,

Because you got away with that last time, does not mean it will be overlooked this time, also.  Caluza element 2 (in service event or aggravation) is a decision made by the decision maker.  We suggest not leaving stuff to chance when possible.  

I dont know the facts as to why an in service event was not in your file and you got SC anyway.  It could have been there all along, you just did not read it.  (Not everyone reads their entire cfile).  Or, you could have had a generous rater who gave you the benefit of the doubt.  Remember, you can testify on your behalf.  And, the VA can decide to accept or reject your testimony as long as they give reasons for doing so.  

In my case the board decided that my testimony was "credible" because it was consistent with other facts.  (I was seeking Sc for hearing loss).  I had reported loud jet engine noise.  The Board was not there with me, so they did not know whether or not I was actually exposed to loud engine noises (aircraft), and my "rate" (MOS) does not generally mean a high level of noise exposure.   So, I showed them a picture of the location of my old barracks, which was just about 100 yards or so from the end of the San Diego Airport.  (It was a google map picture, with the old barracks).  

In the BVA decision, they stated, pretty much, that my testimony was credible as it was consistent with my records.  That is, they said they beleived me, because it made sense.  

I recalled when in training/boot camp having the instructor  stop speaking whenever a plane flew by, which was about every 10 minutes.  The noise was deafening.  The planes had to clear our barracks..it was the first building they had to clear off the runway.  

So, my own testimony established an "in service event".  I am competent to describe a noisy airplane flying overhead.  The audiologist testified she thought that (noisey military aircraft) was "at least as likely as not" the reason for my hearing loss.  A Veterans own testimony, if they decide its consistent with the facts, is enough, sometimes.  The key here is they have to beleive you.  They can also choose to doubt your testimony, especially if it conflicts with other known facts.  Mine did not conflict.  

broncovet, thanks for your insights. I just tend to believe that my case is intuitive in a sense since I have medical records that relate my obesity to pain and inability to properly exercise; and obesity is a major factor in the development of SA.  But I will look for more information and maybe a nexus from a physician, or at least physician notes that relates both conditions.

I hate having been diagnosed with sleep apnea, but then one is trying to get something positive out of it. And it seems that there is a clear and valid path for compensation there.

I also have an appeal at the board now, and it has been going on for two years. I anticipate two more years (even though my last appeal to the bva took less than 2 years) considering its current position on the dock.  Could there be a conflict and more delays in my appeal or a delay in any new claim?