Sleep Apnea

[blahsaysme2u]

i havent posted in a while. i was denied my claim for sleep apnea and got help from the state VSO because i couldnt get the vfw or DAV to return my phone calls. 

i in the army national guard. i was in 03-09 and was deployed to Iraq in 07-08. upon return i immediately went to the va and filed for benefits for health care. i was injured in iraq and filed claims for those. i also was having problems sleeping and the VA gave me a sleep study(4 months after discharge from active duty) and was diagnosed with sleep apnea. i filed a claim and it was denied. 

years have gone by since then and i was trying to get a claim for my sleep apnea once more. last year i submitted a claim(thinking the claim i submitted in 2008 cant be appeal etc.) i was denied a couple months ago again saying that my diagnosis was not "in service". now while i understand i was not active duty at the time of diagnosis, it was only 4 months after. also, where in Iraq would i have been able to get a sleep study done? 

i have been trying and trying to get help with this claim and doing research on my own. i was not getting anywhere. soooooo i went to the VSO. he immediately says "this is a CUE". he says that since the diagnosis was less than a year from discharge from active duty, i should have been granted service connection. so i am confused on this because its not listed by the VA as a presumed disease. is this CUE going to fail? if not, i was also denied service connection for my allergies that i was diagnosed with around the same time. should i file a CUE for that as well? 

 

[Berta]

I completely agree with you Broncovet.

Were you exposed to burn pits in Iraq- vets have claim asthma, COPD, sleep apnea, and many other disabilities due to proven burn pit exposure.But I am sure they ( theystate VSO) considered that potential type of claim....and maybe you were not exposed to burn pits in Iraq.

If so they should have advised you to get onto the Burn Pit Registry.

Also the buddy statement- did the VA completely ignore it or did they reject it and why?

Can you post the buddy statement here ( cover name, ddress etc prior to scanning it.

It would be well worth your time to try to obtain more buddy statements, even those statements from any significant other,who could testify to your sleep problems during your service period.

Also your VSO and state lawyer should consider this:

The US Court of Appeals,Federal District has stated that:

" a veteran with a competent medical diagnosis of a current disability may invoke an accepted medical treatise in order to establish the required nexus."

Hensley 212 F 3rd, at 1265 and I assume they have the 2019 VBM by NVLSP and the opinion is  expanded on page 131.

A strong medical treatise would be on that rveas the sypmtoms pf sleep apnea always precede a full blown need for a C PAP.

This court opinion is evidence in a few BVA cases ( but not mentioned) as the BVA knows what it says, because they awarded AO HBP to a few veterans based on the recent NAS study on HBP and AO.

Treatises and/or acceptable medical studies are great evidence that usually IMO/IME doctors use to bolster their opinions but the Fed circuit Ct in Hensley, went above the tendency of VA to reject studies or Treatises in the past that were not part of IMO/IMEs.

There is a wealth of info on the internet on sleep apnea.

Perhaps you can find a treatise or study from Mayo, or a good medical link that will help you prove that you must have had symptoms of sleep apnea during your service because the diagnosis and need for a C PAP machine came mere months after your discharge.

I had to use medical excerpts/treatises, and even VA's own published DMII Training letter, to prove that my husband had undiagnosed and untreated DMII from AO. 

I did have IMos as well but I knew the evidence I had , to include the above stuff and the medical records themself, was so solid, I knew the IMOs fees would be worth it.

Sleep Apnea does not happen overnight it must have manifested some symptoms while you were in service but being asleep you didnt know it, and might just have felt fatigued during the day.

As Broncovet said

"I agree with Berta, I think this is very winnable, but it all depends on your persistence and willingness to do what it takes." 

Vets lose claims because they do not persist and are not "willing".

And no VSO or anyone else can really do the leg work for them.

 

 

 

 

 

 

 

[awgv001]

12 hours ago, blahsaysme2u said:

i thought about going to local dr but worried they wont write me a nexus letter IMO. im so stressed out over this! and i feel like im going in circles. 

@Berta just posted a ton of valid and valuable information there. Bud, I know it's stressful, at many points I have been overwhelmed by the process, I learned to channel the stress into energy resolving problems and gathering information about all types of claims. Gotta do something with my time besides whittle sticks anyways, lol!

You don't know if you don't try, if it helps, write down the details with major points of discussion when you seek another OSA doc, cause I get tongue tied a lot at Dr's appointments, like for the question ~~~

"How would you describe your memory loss" My Answer - Blank stare like baby deer in headlights. "uhhh"

Give it a shot, if you get rejected, don't take it personally, find an (appropriate) doc that will write you an IMO!

And -- in conjunction with what @broncovet said, for your "in service event" - could the OSA be linked to any other contention you already are SC'd for?

Though it may not be necessary - An avenue would be perhaps to contact that person you got a statement from originally, and ask them if they keep in contact with another buddy that was around at that time too. You can absolutely use multiple statements for the same claim/injury/event. The more witnesses the better, as long as the details don't get "spider-webbed". Always proofread them before submission.

Example -

When I requested a statement from one person, I shared a copy of the statement from the previous individual, because sometimes reading over details from another person can "re-awaken" old corridors of memory. I did this continuously until something finally caught with my old peers.

Edit - I also wanted to put something into context that hopefully puts more spotlight on "odd scenarios" that can be encountered. I hope you find this story encouraging, despite the time it's taken me to "figure it out". It's my fault my claim has dragged on as long as it has because I wasn't aware of all of the details and items needed. Navigating through VA claims with compounded problems of concentration, memory loss, and comprehension is the main reason why my claim had to drag on this long, but it also part of the reason it will warrant a "higher" rating, once fairly adjudicated and in finality - Service connection..

TLDR (story) - If I had not continued to pursue more answers and evidence my claim would be dead in the water today. Evidence can spring up at almost anytime and it's up to us to be able to recognize if/how/what evidence is useful. Don't let one adversarial doctor jack up your entire claim.

Storytime -

As you may know, I have been repeatedly denied for TBI in my claims. It's been at least a decade since the first injury occurred with more of the same injuries occurring over the next year or so following. That being said, when I contacted my peers, many of them did not recall the injuries I had sustained, or the details as to my observed behavior - mainly because it wasn't long after I developed significant nerve damage, my unit had pushed me out to a different one. It was from that junction, that it became slightly more difficult to stay in contact, as they had to carry on without me. Thus begins a conundrum wrapped in an Enigma.

Now, compounded by years of having moved on, the gap is far and wide, and more details become lost in the ebb of time. It was until this year that I was able to find and contact one person who recalled the injuries, and was able to provide details (because you can't report your own blackouts, other than when you come "back to")

Further problems evolved because of the first neuro I saw, he wrote some details, but missed the most important ones. Fast forward another 3 years, and I mention something to my psych, who then puts me through referral to neuro again. This time I get a diagnosis, and an evaluation w/ Nexus, and a buddy statement, but it's not enough, claim gets struck down even with all the caluza elements. Appealed. Fast forward another 4 years, 2 buddy statements, 2 nexus w/IMO, and chronic diagnosis, and now I'm once again referred back out to neuro - this time to do a "more thorough" workup, because part of the denial involved "inconclusive diagnosis" - So now I just have to make sure I have a second opinion to utilize before I reach the BVA...Easy Peasy right? (that's a joke) ---so yes, around a decade after the injuries occurred, it was imperative that I went to go get a second opinion, request a DBQ (because I never had one for TBI, and was never issued a C&P either), and write down any major points of my denial to further discuss with the neuro's I go see.

Edited February 15, 2020 by awgv001

[Berta]

https://www.burnpits360.org/wp-content/uploads/2019/05/TL10-03-revised-5.2013.pdfOne last thought- this might be the way to go- addition to the appeal- by filing a claim for direct SC of the Sleep Apnea and using VA Training Letter 10-03 to support it.

"ORDER

Entitlement to service connection for PTSD is granted.

Entitlement to service connection for obstructive sleep apnea is granted."

In part: ( and why I always suggest vets get a copy of their 201 files)

"Importantly, the Board notes that the Veteran's personnel file indicates he was exposed to environmental hazards while serving in Iraq from November 2004 to November 2005, including human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gases, fumes and dust of unknown origins, blood borne pathogens, airborne pathogens and infectious diseases, including Leptospirosis, Leishmaniasis, Tuberculosis, Hepatitis, and Malaria. See DA Form 2173."

The vet has many buddy statements and an IMO as well, and proved his exposure to environmental hazards caused his sleep apnea , when diagnosed about 4 years after his discharge.

(there is much more to this decision and the BVA remanded quite  a bit)

 

https://www.va.gov/vetapp14/Files5/1435285.txt

The Training letter basically concedes that all vets who served in Iraq, Afghanistan, and Djibouti were exposed to environmental hazards. ( This is the revised letter) 

VA has not determined any presumptives for this exposure but it is one more theory of entitlement your VSO could file a claim on for you, and should state that you have no other known etiology or medical cause for the sleep apnea and prescribed C Pap machine, but for your exposure to environmental hazards in Iraq.

VA Training Letter 10-03

https://www.burnpits360.org/wp-content/uploads/2019/05/TL10-03-revised-5.2013.pdf

You don't need to print off all 25 pages, for your VSO because he should have this important training letter anyhow.

Edited February 15, 2020 by Berta

[blahsaysme2u]

20 hours ago, blahsaysme2u said:

How was it claimed as a gulf war claim? 

never mind. i just looked at how the VSO wrote the claim. i dont know why he put Gulf war on there. but technically i am a gulf war vet. i dont know why this would make a difference. 

so how do i fix this? move forward with the appeal? VSO wants to file appeal with judge. i submitted his argument on here. he again mentions the gulf war. i guess i should ask him to remove this wording just in case. im really frustrated that that small wording is what is throwing a kink is this!

this is the appeal my VSO and the lawyers want to send to the judge. thats what started my "update" to this thread because i wanted to get everyones thoughts on if this was good enough to move forward to a judge. 

there has been a lot of stuff posted and ill address when i get a sec. just couple of things i can talk about right away. i was in Iraq for almost a year and also exposed to burn pits. i am on the Pit registry. i had a buddy statement but looks like the VA ignored it and i have tried to reach out to some people to get more but they are being flaky. (cant count on anyone but yourself these days) i will post his statement later after i scan it. 

[broncovet]

Im puzzled here as to why/how you have a VSO "and" a lawyer.  These are generally mutually exclusive of each other.  I realize that sometimes VSO's refer you to laywers, so that is what may have happened here.  

Other than that, it looks good to me.    To repeat, the lawyers have seen your VBMS file, while I have not, so its inappropriate for me to dispute their treatment of your claim, as they know more about your claim than I DO, AS I have not read your cfile.

[blahsaysme2u]

8 minutes ago, broncovet said:

Im puzzled here as to why/how you have a VSO "and" a lawyer.  These are generally mutually exclusive of each other.  I realize that sometimes VSO's refer you to laywers, so that is what may have happened here.  

The state VSO office has lawyers on retainer to help with appeals cases. they will be assisting me and will be going to court to help with the case when i go to the judge. i am in virginia. its the Virginia Department Veterans Services. best VSO i have ever gone to!

i hope they looked at my claim file. who knows? lol