Reopening Sleep Apnea Claim- Options?

[Willy P]

Good Evening Everyone,

I'll make the background story as clear as I can before I get to my situation:

Active Duty 9.5 years, 2006-August 19, 2015.

Six Months after separating, diagnosed with central and obstructive sleep apnea (February 2016).

No previous diagnosis in service, but in 2013 I complained to my doctor about trouble falling sleep, sleep trouble, and starting to snore.  He prescribed decongestants to try and open my nasal passages better.  I never followed up.

Submitted a claim in May 2016 and included a DBQ, Sleep Study records, and the 2013 doctor's record mentioned above.

C&P Exam went well, and the examiner opined that my sleep apnea was "at least as likely as not" caused by military service.

Va denied the claim in August 2016.  I did not appeal because I had nothing else to provide.

Fast forward to present, and I've been realizing that an IMO nexus letter may be all that I was missing.  My current doctor will not write one, so I've had a couple of emails/calls with Dr. Anaise and Dr. Bash.  Both have offered a nexus letter/IMO and said that I should have a decent chance of getting it approved.

My questions are as follows:

1- Dr. Bash mentioned that I should win a CUE based on the positive C&P and the evidence that I provided that I complained of the symptoms in 2013 while still on active duty.  Reading about CUEs has me pretty nervous on this, and I don't want to jeopardize a positive decision just for back pay.  Should I pursue a CUE, try to reopen the claim, or just submit a new FDC after receiving the IMO/Nexus letter?

2- Dr. Anaise offered the Nexus letter for about 1/3 of the price.  I've read that Dr. Bash was expensive but worth it.  Do you think it's worth spending the extra money in this case?  Dr. Bash also said he would fill out the DBQ for me.

3- Is it a reasonable goal to go after back pay to the first claim?  I figured since I missed the appeals window that I would have no shot, but have seen a couple of success stories on here with CUE or a notice of disagreement.

[GBArmy]

Willy P You have a nice problem. This is my opinion; you certainly can get others who may think differently. Both of these two doc's have sterling reputations, so either choice will probably end up successful. Dr. Anaise price is 1/3. OK; his position will not get you any back pay; it is a new submittal. But, I suspect it is clean and should fly based on what you have presented. On the other hand, Dr. Bash's position could result in consider $ back pay; OSA, if rated at 50%, can buy a lot of beans. But, CUE's take a certain amount of expertise; and it is natural to be worried about screwing up. Major point: you can do both. If you get an IMO for Dr. Anaise, you would have additional ammo if you decided to go for the CUE. There is no time limit on doing a CUE. And there are several key contributors here on Hadit that can help guide you thru the process. Dr. Bash is a terrific resource; but his expertise is medical, not necessarily legalese. You only have one shot at a CUE; you can't re-do. Personally, I would go with option one first.

[paulstrgn]

Why did the VA deny your claim? If the VA C&P stated "as least as likely as not" caused by the military it should have been approved. If you can post a redacted copy of the denial letter it would help in proving suggestion. I am assuming you are required to use a CPAP. The doctor that diagnosed you with OSA, did they say they would not write the nexus letter or a different doctor? Did you submit evidence from the sleep study with your claim? If not you should be able to submit a copy of all the medical documentation from the sleep study along with the doctors visit which should be enough for your claim. I am not sure if you need the IMO from either doctors and here why:

https://www.va.gov/disability/eligibility/illnesses-within-one-year-of-discharge/

Disabilities that happen within one year of discharge -- 

You’ll need to file a claim for disability compensation and submit your evidence (supporting documents).

Your evidence will need to show that both of these are true of your illness:

• It’s at least 10% disabling (for example, you may submit a doctor’s report showing that you’re taking medicine for your high blood pressure), and
• It appeared within one year after being discharged from active service (for example, you may submit a medical report that shows the date of your diagnosis)

I am just curious what were the prices the two doctors quoted you for their IMO?

[broncovet]

It sounds like you about have it figured out..except some judgement calls on your part.  

The safest way is to appeal/reopen/ when you are in the appeal period, then dispute (by filing a nod) to any future possible erroneous effective date when the time comes.  

In other words, keep the claim "pending".  

The reason is you can always later file a CUE (Cues can be filed anytime), but you can not "always" file an appeal/reopen, as these work best in the appeal period.  

Here is my reasoning:

    Years ago, a friend of mine suggested you always "make the move, which leaves the most options".  In other words, if you are going to burn a bridge down, make sure you dont also need to cross that bridge first.  

    Failing to file a nod within the appeal period, is "buring a bridge down" because, once you pass the 1 year period, without filing a nod, you limit your options.  

     Now, you can go the "other way" in the future.  In 2 years, if you become convinced of the validity of your CUE, then you can file it, regardless of the outcome of your pending appeal, which you timely filed.  

     Bottom line:  Never miss an appeal filing date.  Always file your appeal on time, cue or no cue.  

     In regards to "reopening" there are 2 basic types to reopen:

1.  Reopening due to new SERVICE records.  

2.  Reopeing a pending claim.  

      Now, these are treated differently by the VA.   If you successfully reopen due to new service records, it does not matter WHEN you reopen.  You are always supposed to get the effective date "as if" you did that on the day you filed the claim.  

      In regard to reopening due to new relevant evidence of a pending claim, well that claim needs to be in pending claim status, and not final.  (over a year and no nod filed).  

Edited September 23, 2019 by broncovet

[Willy P]

2 hours ago, paulstrgn said:

Why did the VA deny your claim? If the VA C&P stated "as least as likely as not" caused by the military it should have been approved. If you can post a redacted copy of the denial letter it would help in proving suggestion. I am assuming you are required to use a CPAP. The doctor that diagnosed you with OSA, did they say they would not write the nexus letter or a different doctor? Did you submit evidence from the sleep study with your claim? If not you should be able to submit a copy of all the medical documentation from the sleep study along with the doctors visit which should be enough for your claim. I am not sure if you need the IMO from either doctors and here why:

https://www.va.gov/disability/eligibility/illnesses-within-one-year-of-discharge/

Disabilities that happen within one year of discharge -- 

You’ll need to file a claim for disability compensation and submit your evidence (supporting documents).

Your evidence will need to show that both of these are true of your illness:

• It’s at least 10% disabling (for example, you may submit a doctor’s report showing that you’re taking medicine for your high blood pressure), and
• It appeared within one year after being discharged from active service (for example, you may submit a medical report that shows the date of your diagnosis)

I am just curious what were the prices the two doctors quoted you for their IMO?

Attached is the decision text from my denial letter.  They even address the fact that the examiner gave me a positive opinion.  They say there is no event in service, but I submitted the (also attached) record where I brought this up to my doctor.

Here is the text from my C&P exam:

TYPE OF MEDICAL OPINION PROVIDED: [ MEDICAL OPINION FOR DIRECT SERVICE
CONNECTION ]
a. The condition claimed was at least as likely as not (50% or greater
probability) incurred in or caused by the claimed in-service injury, event
or
illness.
c. Rationale: The veteran has recently been discharged from active duty
8/2015 and within the first year diagnosed with obstructive and central
sleep
apnea. It is as likely as not that the veteran experienced sleep apnea in
the
service. The veteran and veteran's wife notes he particularly noticed
sleep
issues around 2010 while in service.

 

Regarding disabilities that happen within 1 year of discharge- on the link you provided, there is another link to "covered illnesses" and I couldn't find sleep apnea on it.  I think that means I'm out of luck for that approach.

[Willy P]

2 hours ago, broncovet said:

It sounds like you about have it figured out..except some judgement calls on your part.  

The safest way is to appeal/reopen/ when you are in the appeal period, then dispute (by filing a nod) to any future possible erroneous effective date when the time comes.  

In other words, keep the claim "pending".  

The reason is you can always later file a CUE (Cues can be filed anytime), but you can not "always" file an appeal/reopen, as these work best in the appeal period.  

Here is my reasoning:

    Years ago, a friend of mine suggested you always "make the move, which leaves the most options".  In other words, if you are going to burn a bridge down, make sure you dont also need to cross that bridge first.  

    Failing to file a nod within the appeal period, is "buring a bridge down" because, once you pass the 1 year period, without filing a nod, you limit your options.  

     Now, you can go the "other way" in the future.  In 2 years, if you become convinced of the validity of your CUE, then you can file it, regardless of the outcome of your pending appeal, which you timely filed.  

     Bottom line:  Never miss an appeal filing date.  Always file your appeal on time, cue or no cue.  

     In regards to "reopening" there are 2 basic types to reopen:

1.  Reopening due to new SERVICE records.  

2.  Reopeing a pending claim.  

      Now, these are treated differently by the VA.   If you successfully reopen due to new service records, it does not matter WHEN you reopen.  You are always supposed to get the effective date "as if" you did that on the day you filed the claim.  

      In regard to reopening due to new relevant evidence of a pending claim, well that claim needs to be in pending claim status, and not final.  (over a year and no nod filed).  

Thank you for the information.

Since I am well past the 1 year window to file an appeal or NOD, I need to just file a new claim right?  I was under the impression that you can have a claim reopened by having "new and material evidence", in which case an IMO may be considered new and material.  If that's no longer correct then my hands are pretty much tied to the new claim.

[paulstrgn]

24 minutes ago, Willy P said:

the link you provided, there is another link to "covered illnesses"

The link you clicked on is for presumptive illnesses and not OSA, since you were diagnose with the one year you should be okay. To be honest I am not sure why you were denied, to me you have met the standard. You met the three elements of Caluza.

1.  Current diagnosis.  Your doctor must have diagnosed you.  No diagnosis, no benefits. 

2.  In service event or aggravation.  You could have had a broken leg, been exposed to excessive noise, or a bomb could have blown up and you lost your legs.   Or, you may have had something before service that got worse (aggravation).  

3.  Nexus.  This is the famous statement, by your doctor, that your (current diagnosis #1 is at least as likely as not related to your in service event, number 2). 

 

I am not sure if this is a CUE or not (it is not my strongest suit) but others will know.