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Reopening Sleep Apnea Claim- Options?

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Willy P

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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.

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6 minutes ago, paulstrgn said:

Now the way I read the regs (I may be wrong so please correct) that as long as it is within one year of discharged it is considered as if it happened in the military.

while I agree, this is an SA claim. If some jackhole at VA thinks he should weight 160 lbs and he is 165 they will try and imply he is obese and therefore has a fat neck and then claim that is causing his snoring.

Just because something pops up in the year right after service there has to be some in-service nexus. In this case maybe burn pits or chemical exposures? who knows.

Getting whomever he roomed with / slept with then to say "I saw/heard him stop breathing" is really the strongest non-medical evidence he might be able to dig up on his own.

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17 minutes ago, GeekySquid said:

so buddy letters are going to be your evidence. Find them. Old roommates, sleeping partners, camping friends etc. That and the IMO's you may chose to get from either or both of those doctors.

So if I get an IMO connecting that snoring/sleeping complaint from active duty to the diagnosis in 2016, plus a couple of lay letters, that should be enough?

Do you recommend proceeding with a new claim or trying to reopen the one denied 3 years ago?

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6 minutes ago, Willy P said:

that should be enough?

I will never use that phrase. There is no telling how the VA will respond to anything.

7 minutes ago, Willy P said:

Do you recommend proceeding with a new claim or trying to reopen the one denied 3 years ago?

The AMA process quirks up your options. We have had postings about VARO's rejecting attempts to reopen base on them being pre-AMA, which require another level of response and waiting.

On the other hand adding in Buddy Letters you did not have then is by definition New and Relevant information that was not before the VA at that time the claim was reviewed.

To get the earlier date the N&R info could do it, just be prepared that the VARO will possibly try and reject it as N&R and force you to make a new claim.

 

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2 minutes ago, GeekySquid said:

I will never use that phrase. There is no telling how the VA will respond to anything.

The AMA process quirks up your options. We have had postings about VARO's rejecting attempts to reopen base on them being pre-AMA, which require another level of response and waiting.

On the other hand adding in Buddy Letters you did not have then is by definition New and Relevant information that was not before the VA at that time the claim was reviewed.

To get the earlier date the N&R info could do it, just be prepared that the VARO will possibly try and reject it as N&R and force you to make a new claim.

 

Is the nexus letter considered N&R?  Would a buddy letter from my wife count?  She's the one that made me ask the doctor about my snoring in 2013.

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4 minutes ago, Willy P said:

Would a buddy letter from my wife count? 

yes and she can give competent lay testimony based on her observation that you stopped breathing during the night. That she was frightened about it and woke you up. that it happened often. more than one is good. Grandma over for christmas saying you died in your sleep is a good letter to add if you have it.

Keep in mind snoring is not SA.

The IME/IMO you get did not exist when you originally filed the claim. It cannot be probative in terms of direct observation or treatment.

The IME/IMO should include a full DBQ and statement to the fact your entire service record was reviewed.

Combined with Buddy Letters it would be allowed under the N&R statute, the question remains somewhat in flux if any particular rating team MUST accept it as N&R. You can make that case if you have too if they reject the IMO/IME. The different raters and VARO's can behave in disparate ways, so I am hesitant to say that out of the gate they will just accept the IMO/IME as N&R. I believe they should, just don't want to be nailed to the cross if some jackhole doesn't and you have to jump through more hoops.

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24 minutes ago, GeekySquid said:

yes and she can give competent lay testimony based on her observation that you stopped breathing during the night. That she was frightened about it and woke you up. that it happened often. more than one is good. Grandma over for christmas saying you died in your sleep is a good letter to add if you have it.

Keep in mind snoring is not SA.

The IME/IMO you get did not exist when you originally filed the claim. It cannot be probative in terms of direct observation or treatment.

The IME/IMO should include a full DBQ and statement to the fact your entire service record was reviewed.

Combined with Buddy Letters it would be allowed under the N&R statute, the question remains somewhat in flux if any particular rating team MUST accept it as N&R. You can make that case if you have too if they reject the IMO/IME. The different raters and VARO's can behave in disparate ways, so I am hesitant to say that out of the gate they will just accept the IMO/IME as N&R. I believe they should, just don't want to be nailed to the cross if some jackhole doesn't and you have to jump through more hoops.

Great information, thank you!

I just checked the va.gov site for filing a claim.  If I choose the option of disagreeing with an earlier claim in 2016, I get prompted to file a supplemental claim.  But then when I click the link for supplemental claims, the instructions say that I must file within 1 year.  This doesn't make any sense...

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