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tk3000

Obesity and Sleep Apnea Concurrently

Question


 

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.).

-------

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

 

Edited by tk3000

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In England, US, and Commonwealth jurisprudence and thus court decisions have precedent over codified law. I know that may not necessarily applied to federal code of rules and regulations that is the domain of the VA. And while the CAVC is an independent court (as you pointed out on your case of the a/c for your vehicle), the BVA is not but still its decisions has some bearing and weight upon new decisions

Sure enough, there are many overweight vets, but the vast majority of them do not have physical conditions that are service connected which then preclude them from doing physical exercise. And if somebody with depression has nexus to obesity (overeating due to depression) and then sleep apnea as a granted claim due to depression, I can not imagine how a real physical disability could not cause obesity and thus sleep apnea. It seems that the RO may not grant the claim, but likely the BVA would; anyhow it depends on my medical evidence too and what type of physical examiner one gets.

Thanks for your input Richard

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12 hours ago, Gastone said:

Have you filed the Secondary SA FDC yet? If not, "you're Burning Daylight!"

Still gathering evidence. We can not go to the battle without body armor! 

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Have you started an E-Ben Secondary SA Claim to establish your File Date or filed an official "Intent to File?"

You're going for the "Reverse Nexus," right? Don't drag your feet on the New Claim filing, this won't be Awarded at the RO Level. This "Reverse Nexus" Claim is destined for the BVA. 

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On 7/15/2018 at 7:30 AM, Gastone said:

Have you started an E-Ben Secondary SA Claim to establish your File Date or filed an official "Intent to File?"

You're going for the "Reverse Nexus," right? Don't drag your feet on the New Claim filing, this won't be Awarded at the RO Level. This "Reverse Nexus" Claim is destined for the BVA. 

No, I haven't started it yet. But I will file soon (intent to file). I believe that it can be done on ebenefits?  I was not i a big hurry for two reasons: 1) it is not going to affect my level of compensation since I already at 100% due to IU, but it would put me in another bracket; that is schedular 100%. 2) I have a pending appeal with the BVA, but I don't expect that to be finalized any time soon. 

Another thing that is worrisome is how the VA operates with its lack of accountability and some many horror stories to go along with it. I have well diagnosed conditions whose rates have been increased by the BVA, I am afraid that it can prompt reviews of such conditions by the RO (as indicated by broncovet) which could then bring the rates down however absurd it may sound. And it may seems absurd, but sometimes absurdity is the norm with the dysfunctonal VA whose employees often amass to plot against veterans. Besides some of my disabilities are more than 10 years old (original diagnosed) , so they may have protective status. Still, the idea that they can wrongly and purposefully review my conditions is worrisome to say the least.

My very first post in this thread is actually a rough initial draft of what my claim is going to be. 

 What do you mean by "Reverse Nexus"? A flipped nexus? 

As building up of the case, I am beginning to collect medical evidence. The following is an excerpt from the notes taken by the VA primary care physician:

“SLEEP APNEA: Discussed the various causes of OSA, and purpose of F/U to titrate pressure & fit mask. Pt takes trazodone prn, and is not on any meds that I know cause apnea. He says he has gained some weight since his prior study, and I agreed that this may have some impact.”

 

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Per VA Reg, you won't automatically be made Scheduler 100% because of this "New Award." The Rater has to determine if using this New SA 50% SC, combined with one or more of your other Non-IU Issues would have a separate CSC of 60%, making you eligible for SMC S (Housebound) additional $34?.00 per mos. If that were the case, your IU Rating gives you the largest Comp amount and would continue.

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