Unsure if should appeal or just drop it

[CCFla]

Hello,

    We are in need of some advise. I’m hoping someone here can offer some advice.  My husband and I  really need it. While on Active duty my husband had a sleep study performed. He was sent off base for it. My husband was told by his primary  he had obstructed sleep events, but didn’t require a machine yet. So from 2009 until he retired Dec 31,2015  obstructed sleep apnea was listed as a diagnosis. 2016 to now it’s been listed in his Va records. A few months ago his Va mental health provider suggested for him to get a current sleep apnea test. The Va sent him To get one. He stopped breathing over 25 times an hour and was fitted for cpap.  He sent a claim for sleep apnea since he now needed a cpap. His claim was denied and it said In 2009 obstructed sleep apnea was added to his record In error and that he didn’t have while in service. So we looked through his record and see there’s a note saying his Dr called and told him it was a negative study. He was never called and told that. We found the sleep study report in his records.. He had obstructed events, but not over 5. He had 4 and some other events. The Dr that performed it wrote he recommended him to be retested and also have another type of test performed. He was never told this and the military Dr never wrote that in his records.  and no follow up test was ever performed or wrote. He was continually told he had it and all his active duty records state it. When he would complain about being so tired the Drs would tell him it’s cause he has sleep apnea. We went to see his VSO and he told us to go back to the Dr who performed the newest sleep study test and have him write a letter stating that it didn’t happen over night and that he felt that my husband would have had it awhile.  So we went there and showed the nurse practitioner the old test and explained what was going on and that we needed a letter if Dr would be willing to do so. She was all for it, she said he was suppose to be retested and never was and that he has had this condition that it didn’t just happen suddenly.   She explains in the hallway to the Dr what we need and he comes in and tells us he won’t do it. That we are mistaken and don’t need a letter that the VA doesn’t require that. 

     So we don’t know if we should just drop it or what our next step should be. Any advice is greatly appreciated   

        Thank you! 

[broncovet]

Appeal.   VA makes excuses to deny.  Make sure you have the following documentation:

1.  Current diagnosis of OSA and currently using a CPAP, prescribed by a doctor. 

2.  In service "event", or aggravation.

3.  Nexus, or link between the in service event (which caused the sleep apnea), and your current diagnosis.  

[CCFla]

9 minutes ago, broncovet said:

Appeal.   VA makes excuses to deny.  Make sure you have the following documentation:

1.  Current diagnosis of OSA and currently using a CPAP, prescribed by a doctor. 

2.  In service "event", or aggravation.

3.  Nexus, or link between the in service event (which caused the sleep apnea), and your current diagnosis.  

Thank you for the reply.  I am unsure how to do number two since he was told he had it, but now we are told by VA examiner it was an error.  And his current sleep apnea doctor told  MyHusband  that we didn’t need a letter that it wasn’t the way the VA worked.  Not many doctors were we live are familiar with the VA system  I thought about trying to find another doctor and use our Tricare and go to him  and see if that doctor would write something.  

[vetquest]

Once you have the information that broncovet says you need I would definitely appeal.  I have been to the BVA on several appeals and always won on appeal.  If the VA did more due diligence the BVA would be out of a job but at the current rate they will be in a job for eternity.

[doc25]

54 minutes ago, CCFla said:

Hello,

    We are in need of some advise. I’m hoping someone here can offer some advice.  My husband and I  really need it. While on Active duty my husband had a sleep study performed. He was sent off base for it. My husband was told by his primary  he had obstructed sleep events, but didn’t require a machine yet. So from 2009 until he retired Dec 31,2015  obstructed sleep apnea was listed as a diagnosis. 2016 to now it’s been listed in his Va records. A few months ago his Va mental health provider suggested for him to get a current sleep apnea test. The Va sent him To get one. He stopped breathing over 25 times an hour and was fitted for cpap.  He sent a claim for sleep apnea since he now needed a cpap. His claim was denied and it said In 2009 obstructed sleep apnea was added to his record In error and that he didn’t have while in service. So we looked through his record and see there’s a note saying his Dr called and told him it was a negative study. He was never called and told that. We found the sleep study report in his records.. He had obstructed events, but not over 5. He had 4 and some other events. The Dr that performed it wrote he recommended him to be retested and also have another type of test performed. He was never told this and the military Dr never wrote that in his records.  and no follow up test was ever performed or wrote. He was continually told he had it and all his active duty records state it. When he would complain about being so tired the Drs would tell him it’s cause he has sleep apnea. We went to see his VSO and he told us to go back to the Dr who performed the newest sleep study test and have him write a letter stating that it didn’t happen over night and that he felt that my husband would have had it awhile.  So we went there and showed the nurse practitioner the old test and explained what was going on and that we needed a letter if Dr would be willing to do so. She was all for it, she said he was suppose to be retested and never was and that he has had this condition that it didn’t just happen suddenly.   She explains in the hallway to the Dr what we need and he comes in and tells us he won’t do it. That we are mistaken and don’t need a letter that the VA doesn’t require that. 

     So we don’t know if we should just drop it or what our next step should be. Any advice is greatly appreciated   

        Thank you! 

Was that a civilian Dr. or VA dr. that said you were mistaken and didn't need a letter?

Because that Dr. is sorely mistaken. A nexus of opinion IS required to prove a service connected or secondary service connected disability. 

I had a Secondary Sleep Apnea claim denied twice.

To reopen that claim I just submitted a Sleep Disability Benefits Questionnaire that my VA pulmonologist filled out(I was lucky). A VA dr. or Civilian Dr. can fill one out. But, unfortunately, it's up to the Dr.s discretion to fill one out. VA Directive 1134 provides guidance for VA doctors on medical opinions and filling out DBQs. You can invoke this directive, if a VA doctor refuses. Just a thought.

https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=4300

For any doctor to provide a nexus of opinion they must state the minimum threshold of "at least as likely as not" the veteran's condition is due to military service.

I agree with  Broncovet appeal to the DRO review first, but if the DRO denies the claim again. Send the claim to traditional appellate review(BVA). RAMP is available for a faster appeals process.

In the meantime, you can make attempts to get a Dr. to review all the medical evidence you have; fill out a DBQ or provide a nexus of opinion. It'll add weight to your claim.

Best wishes.

 

[doc25]

4 minutes ago, vetquest said:

Once you have the information that broncovet says you need I would definitely appeal.  I have been to the BVA on several appeals and always won on appeal.  If the VA did more due diligence the BVA would be out of a job but at the current rate they will be in a job for eternity.

I've narrowed it down to VA ratings schedulers and DROs at Regional Offices that screw up veteran's claims about 90% of the time by not following laws and statutes. If they don't know how to rate a claim or claims, they just pass the buck to the BVA to decide. 

From my analysis, Ratings Schedulers and DROs are left out in the cold just as much as us as veterans. I do feel ROs need to branch into three departments "IN-SERVICE CLAIMS" ,"SECONDARY SERVICE CLAIMS,and "POST-SERVICE CLAIMS". 

This would make for Ratings Schedulers to be better trained in applying the appropriate laws and statutes to a claim. Each department handles the appropriate claim. We can't expect another human being to know all of the CFR 38 handbook.

I know it's wishful thinking. 

[jfrei]

If I could just say do not wait and at least get the ball rolling, after that one year hits filing CUE is your only option and allot harder to prove and time consuming. So don’t wait to file your NOD to at least solidify your appeal in time...