Sleep Apnea (Reopened Claim)

[rk4435]

I was originally denied for Sleep Apnea in 2012.  My Pulmonologist that treats me for lung damage from Burn Pit Exposure believes that my Sleep Apnea is secondary to the exposure.  He even offered to write a nexus letter.  No one has ever offered help before, of course I accepted.

The claim is now reopened and I have submitted his letter.  If it is granted would the effective date be the date I reopened with new evidence, or the original date of the claim?

Thank you for any knowledge.

[rk4435]

1 hour ago, doc25 said:

[I'm guessing you are already service connected for Asthma? Is this correct? If yes, proceed and read below.

If no, you will need to get Asthma service connected first.]

Unfortunately, there is legal terminology that is required in a nexus of opinion.

Your Dr. has to state one of these phrases for a favorable nexus.

1. "Due to" (100% probability)

Ex. The veteran's claimed condition is due to the veteran's service-connected Asthma and the veteran's burn pit exposures in military service..

2. "More likely than not" (Greater than 50% probability)

Ex. The veteran's claimed condition is more likely than not, due to the veteran's service-connected Asthma and the veteran's burn pit exposures in military service.

3. "At least as likely as not" (Equal to or greater than 50% probability)

Ex. The veteran's claimed condition is at least as likely as not, due to the veteran's service-connected Asthma and the veteran's burn pit exposures in military service. 

 

Here is a study below I attached that you can show your doctor and see if he'll use it to make the link in his rationale.

Asthma_and_obstructive_sleep_apnea_More_than_an_as.pdf 325.14 kB · 0 downloads

I may be screwed, he made a clear link but did not use that succinct terminology in either letter. He offered to do the nexus letter and I do not feel comfortable asking him to do more.  His treatment and meds have given me a somewhat decent return for now, but the meds are not as effective as they were several months ago.  

As it is I am rated for Asthma, potentially constructive bronchiolitus.  Since it is a rated condition, if it becomes terminal my family will have benefits. 

[doc25]

25 minutes ago, rk4435 said:

I may be screwed, he made a clear link but did not use that succinct terminology in either letter. He offered to do the nexus letter and I do not feel comfortable asking him to do more.  His treatment and meds have given me a somewhat decent return for now, but the meds are not as effective as they were several months ago.  

As it is I am rated for Asthma, potentially constructive bronchiolitus.  Since it is a rated condition, if it becomes terminal my family will have benefits. 

Screwed? Not so fast. Let's take into consideration:

#1. There is  a link that was made.

#2. A specialist made the link. A pulmonologist opinion carries more weight than a General Practice Dr., Physician Assistant, or a Nurse Practitioner as a C&P examiner

It doesn't hurt to ask your dr. to write it in the format that was mentioned. 

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You seem to have met the Caluza elements for secondary connection, anyway. 

#1. You met the criteria for current diagnosis of Sleep Apnea.

#2. You met the criteria for a service-connected disability.

#3. A nexus of opinion was provided. Albeit, it does not contain the legal terminology. It does raise a significant amount of reasonable doubt in your favor.

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What we need to also look at is that:

#1. You had a sleep study done.

#2. The sleep study confirms you have sleep apnea.

#3. A diagnosis for sleep apnea was made. The diagnosis also has to state you need a "medically necessary" CPAP Machine

#4. You were issued a CPAP machine.

[Richard1954]

Are you aware:

§4.96  Special provisions regarding evaluation of respiratory conditions.

 

(a) Rating coexisting respiratory conditions. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. However, in cases protected by the provisions of Pub. L. 90-493, the graduated ratings of 50 and 30 percent for inactive tuberculosis will not be elevated.

 

Asthma is rated under 6602  and sleep apnea is rated under  6847..... the va does not normally give two separate ratings for these conditions instead they will give you one rating which will be the higher rating of one or the other.. for example if your asthma is rated at 60%  and your sleep apnea is rated 50% your will be 60% for both conditions.. or if the Asthma is rated 30% and the sleep apnea is rated 50% , you will receive one 50% rating....

I have seen a few cases on the BVA cite, where a veteran was rated separately for each condition, but that is far and few... normally it will not happen...

I have a case on appeal because of the special provisions listed above... 

I have appealed  because to rate sleep apnea as a lung condition is factually and medically incorrect and should not be included in the special provisions. Of course it will be denied but I have to try... otherwise in my case and likely yours as well it will not benefit you much or maybe not at all to even go thru the C/P and rating process...

My rating for asthma is 60% , my rating for copd is 100%, my sleep apnea rating is 50% --- I got one rating for all three conditions 100%.

[Richard1954]

1 hour ago, doc25 said:

 

#3. A diagnosis for sleep apnea was made. The diagnosis also has to state you need a "medically necessary" CPAP Machine

#4. You were issued a CPAP machine.

 Note a diagnoses does not have to state that you need a cpap machine or that one was issue to you.

The only thing required is that a diagnoses of sleep apnea was made and that it is service connected  

(Even if your sleep study determines you need a cpap , there is no requirement that one must be issue, and no requirement that you must use it)

The actual ratings are listed below and they are self explanatory......... 

6847    Sleep Apnea Syndromes (Obstructive, Central, Mixed):

 

                  Chronic respiratory failure with carbon dioxide retention or cor

                        pulmonale, or; requires tracheostomy............................................................... 100 

                  Requires use of breathing assistance device such as continuous

                        airway pressure (CPAP) machine....................................................................... 50 

                  Persistent day-time hypersomnolence ...................................................................... 30

                        Asymptomatic but with documented sleep disorder breathing          0        

 

 

Edited June 19, 2019 by Richard1954
corrected statement

[rk4435]

17 hours ago, Richard1954 said:

"Asthma is rated under 6602  and sleep apnea is rated under  6847..... the va does not normally give two separate ratings for these conditions instead they will give you one rating which will be the higher rating of one or the other.. for example if your asthma is rated at 60%  and your sleep apnea is rated 50% your will be 60% for both conditions.. or if the Asthma is rated 30% and the sleep apnea is rated 50% , you will receive one 50% rating...."

 

Richard, I came across this today in my files:

"Furthermore, under 38 C.F.R. § 4.96, a separate rating can be assigned for asthma even when the veteran is receiving compensation for sleep apnea. While these respiratory conditions each impair his ability to breathe, each condition has distinct and separate symptomatology. The sleep apnea is caused by obstructive factors and results in disruption of breathing during sleep; the condition is alleviated by the use of CPAP. The asthma is caused by exposure to allergens and irritant particles and results in recurrent attacks of spasmodic contraction of the bronchi; the condition is alleviated by the use of bronchodilators. Because the symptomatology does not overlap, a separate rating should be assigned for the asthma. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994)."

This contradicts what you posted,but I cannot find a date on your quote.  I imagine yours is a newer version since the one I posted is from 1994. 

 My Asthma rating is 30%, the next level is 60% and I do not believe I meet the 60% criteria.  I nebulize medicine several times a day and have to use antibiotics to fight off bronchitis two or three times a year, but I think the 60% level requires steroids / Z pacs.  

 

 

Edited June 19, 2019 by rk4435

[doc25]

17 hours ago, Richard1954 said:

 Note a diagnoses does not have to state that you need a cpap machine or that one was issue to you.

The only thing required is that a diagnoses of sleep apnea was made and that it is service connected  

(Even if your sleep study determines you need a cpap , there is no requirement that one must be issue, and no requirement that you must use it)

The actual ratings are listed below and they are self explanatory......... 

6847    Sleep Apnea Syndromes (Obstructive, Central, Mixed):

 

                  Chronic respiratory failure with carbon dioxide retention or cor

                        pulmonale, or; requires tracheostomy............................................................... 100 

                  Requires use of breathing assistance device such as continuous

                        airway pressure (CPAP) machine....................................................................... 50 

                  Persistent day-time hypersomnolence ...................................................................... 30

                        Asymptomatic but with documented sleep disorder breathing          0        

 

 

I stand corrected. The diagnosis doesn't need to state it, but it needs to be in the documentation.

If you still believe that the phrase "medically necessary" doesn't need to be present?

Let's consider the advisement of this veteran's law firm. 

The bad news is that this extra scrutiny by VA will be a trap for the unwary.  If a veteran doesn’t have a statement from the doctor saying the CPAP is medically necessary, it is an invitation for VA to deny the claim now.

https://veterans.perkinslawtalk.com/post/bad-secret-change-to-va-sleep-apnea/