Sleep Apena denied

[Berta]

This is from a poster on my profile-

"JaeNobe said:

I was denied OSA claim secondary to Depression and Chronic Pain. I have an IMO from David Anise connecting it to my service related injuries and depression, Sleep Dr. put I my C-Pap was a necessity.  I have a c-pap. Even, submitted the NIH Sleep Disorder study.   I do not have my letter stating why the denied it Im pretty sure its because of the VA's PA that half way did my C&P (5 mins) said that she believed it wasnt.  It was I want to appeal but not sure what the best ave is to do so. Do I hire a lawyer (if so, who do you recommend)? Do I use DAV, VSO. I've seen someone say ask them to send to BVA.  I'm at a complete lost as to what my next step should be. "

 

[Berta]

You need to get the decision and then scan and attach it here.

Cover your C file# and name prior to scanning it.

We need to see their rationale, and also the Evidence list.

Maybe they didnt consider the IMO.

" I do not have my letter stating why the denied it Im pretty sure its because of the VA's PA that half way did my C&P (5 mins) said that she believed it wasnt. "

Do you have a copy of the  exam? Are you sure a VA PA did the exam or a contractor from LHI, VES, or QTC?

" It was I want to appeal but not sure what the best ave is to do so. Do I hire a lawyer (if so, who do you recommend)? Do I use DAV, VSO. I've seen someone say ask them to send to BVA.  I'm at a complete lost as to what my next step should be. "

The denial can determine the next step.Others will chime in.

Edited June 17, 2019 by Berta

[broncovet]

There is a lot here about "lawyering up".  My take on it is as follows:

If you have a recent BVA denial, GET an attorney.  Your fees will be paid by EAJA, if you win.  Its a no brainer.  

If you are at the CAVC for any reason, get an attorney. 

If you are at the Regional office (or BVA) its less clear.  

a.  If you are at the BVA and its a very old claim, involving lots of retro..that you have not been able to win for a long time..get an attorney.  

b.  If you got a recent denial, and are going to the Board, you can maybe save money doing it yourself.  

    1.  If the retro is small, then you can win it at the BVA. 

    2.  If the retro is large (over 100,000) get an attorney.  

      Frankly, an attorney isnt going to want to represent you if you are only talking a few months retro.  Its just not worth it for them.  If its 20 years of retro or more, then they can devote the necessary time to get you a half million bucks, so they can get 20 percent, or a hundred grand.  

      

[JaeNobe]

22 hours ago, broncovet said:

There is a lot here about "lawyering up".  My take on it is as follows:

If you have a recent BVA denial, GET an attorney.  Your fees will be paid by EAJA, if you win.  Its a no brainer.  

If you are at the CAVC for any reason, get an attorney. 

If you are at the Regional office (or BVA) its less clear.  

a.  If you are at the BVA and its a very old claim, involving lots of retro..that you have not been able to win for a long time..get an attorney.  

b.  If you got a recent denial, and are going to the Board, you can maybe save money doing it yourself.  

    1.  If the retro is small, then you can win it at the BVA. 

    2.  If the retro is large (over 100,000) get an attorney.  

      Frankly, an attorney isnt going to want to represent you if you are only talking a few months retro.  Its just not worth it for them.  If its 20 years of retro or more, then they can devote the necessary time to get you a half million bucks, so they can get 20 percent, or a hundred grand.  

      

No its only back dated to Feb 2018. 

[vetquest]

Post your denial as Berta recommended.  The members of the board will be willing to advise when they have enough information.

[JaeNobe]

8 minutes ago, vetquest said:

Post your denial as Berta recommended.  The members of the board will be willing to advise when they have enough information.

Will do. Awaiting the 7 - 10 business days and will post as soon as I get it. Thanks

[JaeNobe]

 

Here is the Decision letter. I noticed in the evidence list they did not consider the files I uploaded "NIH Sleep Disordered Breathing and Depression & the Association of Psychiatric Disorders and Sleep Apnea in Large CoHort 

(Tidbit: the same MD that did signed off on my Sleep Study is the same Dr. who wrote the article Association of Psychiatric Disorders and Sleep Apnea in Large CoHort )

 EVIDENCE

•         VA Form 21-526 EZ: Application for Disability Compensation and Related Compensation Benefits, January 25, 2019

•          Statement dated 01/21/2019 from Dr. XXXXXX, received January 25, 2019

•          Telephone call documented on VA Form 27-0820, Report of General Information, dated February 4, 2019

•         VA examination for Sleep Apnea evaluated at VAMC Houston dated February 15, 2019

•          Copy of internet article from "Sleep Health" August 2017, received February 19, 2019

•         Addendum to 02/15/2019 VAMC Houston Sleep Apnea examination, dated June 7, 2019

•          Rating decision dated November 18, 2014

•         Treatment records from VAMC Houston and its out-based clinics from April 18, 2005 to June 7, 2019                                                                                          .    .

•         Treatment records from VAMC Upstate New York and its out-based clinics from July 24, 2004 to October 30, 2003

•          Service treatment records from August 1999 to June 2002, received Februaiy 17, 2004, June5, 2014, and March 16, 2015

 

REASONS FOR DECISION

Service connection for sleep apnea syndromes as secondary to the service-connected disabilitv of depressive disorder {claimed as depression).

 

The claim for service connection for sleep apnea syndromes as secondary to depressive disorder (claimed as depression) is considered reopened because the evidence received is considered new and material. (38 CFR 3.156) However, the evidence continues to show this condition is not related to the already service connected condition of depressive disorder (claimed as depression). (38 CFR 3.310) Further, there is still no evidence that sleep apnea syndromes was incurred in or caused by service or within any applicable presumptive period. (38 CFR 3.303, 38 CFR 3.307)

 

You were previously denied service connection for sleep apnea because your service treatment records were silent for any complaints, treatment, and/or diagnosis for sleep apnea. On your claim document received January 25, 2019 claimed sleep apnea secondary  to your service connected depressive disorder. The telephone call dated February 4, 2019 also claimed sleep apnea secondarily to your service connected degenerative arthritis of the spine with intervertebral disc syndrome. You were diagnosed with obstructive sleep apnea in October 2006. The evidence shows the first complaints and/or treatment for depression, depressive disorder, or other mental health condition was in September 2014. The VA examiner stated that obstructive sleep apnea is a physiological condition of the upper airways. Sleep apnea is a periodic complete or partial collapse of the pharyngeal soft tissue during sleep. Although sleep disturbances is a symptom of mood disorder, it is not the cause of soft palate problems associated with sleep apnea. The submitted statement from Dr. XXXXX opined that your medications associated with the treatment of your service connected depressive disorder assisted in causing your obstructive sleep apnea.

The evidence shows no medication treatment for any mental health condition prior to or at the time of your diagnosis of obstructive sleep apnea. Dr. XXXXXX also opined that your pain from your service connected degenerative arthritis of the spine with intervertebral disc syndrome caused sleep disturbances, which are a symptom of sleep apnea. As previously stated, sleep disturbances do not cause the physiological soft palate problems of obstructive sleep apnea.

Sleep disturbances have been identified as a symptom of your depressive disorder. You are service connected for depressive disorder secondary to your degenerative arthritis of the spine with intervertebral disc syndrome. The evidence does not support a relationship between your obstructive sleep apnea diagnosed in 2006 and your service connected depressive disorder, so service connection cannot be granted. The evidence does not support a relationship between your obstructive sleep apnea and service connected degenerative arthritis of the spine with intervertebral disc syndrome. Service connection for obstructive sleep apnea remains denied.

Favorable Findings identified in this decision:

A confirmed diagnosis of obstructive sleep apnea in October 2006.

REFERENCES:

 

Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans' Relief contains the regulations of the Department of Veterans Affairs which govern entitlement to all veteran benefits. For additional information regarding applicable laws and regulations, please consult your local library, or visit us at our website, www.va.gov.