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.

[Richard1954]

17 hours ago, doc25 said:

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

Doc25... actually I didn't make a comment concerning this statement..

However you are correct " medically necessary"  was added  when the VA update the rating requirement. 

[Richard1954]

On 6/19/2019 at 9:00 AM, rk4435 said:

"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. 

I have seen this before but I can tell you from personal experience ( my rating is Jan 2017)  even when I had an Independent Medical Opinion that not only stated the above but went into quite a bit of detail the va still denied me a separate rating. The problem seems to be that because 4.96 Special provision regarding evaluations of  respiratory conditions  is still  a part of Title 38. The  initial raters ( used to be the Regional offices) will not rate outside of the Special provisions. In May 2017 I  requested a DeNovo review and again asked for a separate evaluation, it was denied, and in Dec 2018 I appealed to the BVA. I have seen two cases listed on the BVA decision web cite that granted separate awards, but as long as this provision is still in Title 38, the va at least initially will still deny separate ratings, and I have the impression that very few veterans fall into this situation and still fewer do not appeal the denial of separate rating. What is seems to come down to is that( right now at least) only the BVA and COVA have the authority to grant separate rating. My case is still pending at the BVA.  As far as I know the special provisions have been in Title 38 for many many years before the 1994 decision you listed above.

[doc25]

4 hours ago, Richard1954 said:

I have seen this before but I can tell you from personal experience ( my rating is Jan 2017)  even when I had an Independent Medical Opinion that not only stated the above but went into quite a bit of detail the va still denied me a separate rating. The problem seems to be that because 4.96 Special provision regarding evaluations of  respiratory conditions  is still  a part of Title 38. The  initial raters ( used to be the Regional offices) will not rate outside of the Special provisions. In May 2017 I  requested a DeNovo review and again asked for a separate evaluation, it was denied, and in Dec 2018 I appealed to the BVA. I have seen two cases listed on the BVA decision web cite that granted separate awards, but as long as this provision is still in Title 38, the va at least initially will still deny separate ratings, and I have the impression that very few veterans fall into this situation and still fewer do not appeal the denial of separate rating. What is seems to come down to is that( right now at least) only the BVA and COVA have the authority to grant separate rating. My case is still pending at the BVA.  As far as I know the special provisions have been in Title 38 for many many years before the 1994 decision you listed above.

Unfortunately, even when we do everything right. The VBA still gets it wrong. Sorry to hear that happened to you.

[rk4435]

Well it's a moot point now.  I had two C&P exams in 16 minutes and she stated clearly that I do not have sleep apnea. 

Edited June 26, 2019 by rk4435