historic diagnose will VA Accept one 10 years old?

[Buck52 3,235]

Question

Will the va take an older diagnose that was in the veterans medical records? say 5/10 years ago?

Like a Veteran was diagnose for Sleep apnea back in 2010...but never filed a claim for it   now this veteran wants to put in a claim for it.

He uses  the VA PRESCRIBE  C-PAP

He has a Mild Diagnose for Sleep Apnea  but no where in his records does it say is medically required...so under the M-21  it says must necessary medically to use''

the manual now says,

“Use absent a medical determination that the device is necessary does not qualify.  The regulation requires that the device be necessary and this is a medical question.

He never had OSA in military  but has it now years later after separation due to his PTSD. 

His VA M.H. Phyistrist Suggested he see the VA sleep clinic & he did a sleep study  and they diagnose him with the Mild OSA and gave him a  C-pap TO USE (*THIS WAS 10 YEARS AGO*) But no where I can find in his records the Dr said it is medically necessary to use''??

I mention to him they will go by the date he filed his claim for sleep apnea  but we have not filed it yet...I am trying to get all his T's  and I's crossed  we don't want a denial.

How will he over come the new regulation in M-21 below

“Use absent a medical determination that the device is necessary does not qualify.

I am thinking he needs a Sleep Dr  or a Qualified Dr to render his medical opinion that the C-pap machine is medically ''REQUIRED'' this veteran is necessary to use his c-pap machine prescribe by the VA

We are going to file a secondary to his PTSD. AS SOON AS I CAN GET HIM TO SEE A SPECIALIST OPINION FOR THE C-PAP MACHINE REQUIRED USE AND MEDICALLY NECESSARY TO USE FOR HIS WELL BEING 

Need some opinions on this please.

[blahsaysme2u 155]

following

[blahsaysme2u 155]

following

[JKWilliamsSr 107]

Normally it would be assumed that using a CPAP is medically necessary.  The reason for this is you can only get one via a prescription.  

I have Asthma and Sleep Apnea.  I see a Pulmonologist for both of them for treatment.   A pulmonologist is a specialist in conditions that affect the lung and respiratory tract and since Sleep Apnea is considered an upper respiratory condition you do not not have to see someone that specializes in sleep conditions only. 

It does not matter what the M21-1 says since it is not law.  The law that pertains to sleep apnea is 38 CFR 4.97 under diagnostic code 6847 and it does not have a requirement of "medical necessary" it only says "requires use of breathing assistance device such as continuous airway pressure (CPAP) machine".   

A CPAP machine is used to treated the symptoms of Sleep Apnea and VA disability compensation is based on symptoms. 

Edited January 21, 2020 by JKWilliamsSr

[GBArmy 1,445]

Buck52 I agree completely with your tract; get a diagnosis from a current specialist NOW, and just tie it back to his 10 year ago medical suggestion/direction to use the CPAP machine.

[brokensoldier244th 974]

VA didn't just give away cpaps, they are expensive. If he has one, it's medically necessary.

[Buck52 3,235]

jK Williams Sr 

Quoted

''Normally it would be assumed that using a CPAP is medically necessary.  The reason for this is you can only get one via a prescription''

But since the change or added to the M-21  ( The VA Playbook)

the change or added to the m-21 is

''

How will he over come the new regulation in M-21 below

“Use absent a medical determination that the device is necessary does not qualify.''

I only know that he may need a specialist to give his medical opinion that it is ''Required Medically necessary to use for his well being''  

That may fly  over the red flag  for=“Use absent a medical determination that the device is necessary does not qualify.''

 

[brokensoldier244th 974]

Sure, if he bought the cpap himself, but if it's prescribed by VA they expect it to be used. They wouldn't have prescribed it if it medically necessary.

[Buck52 3,235]

It may surprise you to learn that the VA actually has a series of written policies on how to decide VA disability claims.  This huge document is a “playbook” for VA personnel to use in deciding every type of VA claim.

That playbook is M21-1MR Adjudication Procedures Manual.  The M21-1MR is constantly being updated in a piecemeal fashion.  One of those most recent updates was the section dealing with the adjudication of VA sleep apnea disability claims.

Beware This Pitfall in VA Sleep Apnea Claims

One of the two changes makes it a little easier for the Regional Office to deny your VA sleep apnea claim at the 50% disability rating level.  The diagnostic criteria for a VA sleep apnea claim, found in the Code of Federal Regulations, have not changed.  For a 50% rating, the diagnostic criteria still “Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine.”

But, with these changes in the VA playbook, VA is placing a greater emphasis on what is meant by the word “required.”  Look at this new language in the m21-1MR:

“When determining whether the 50-percent criteria are met, the key consideration is whether use of a qualifying breathing assistance device is required by the severity of the sleep apnea.”

A little bit later on, the manual now says,

“Use absent a medical determination that the device is necessary does not qualify.  The regulation requires that the device be necessary and this is a medical question.”

That last phrase should be a warning – and a clue – to you.  In the past, if you presented evidence that your doctor prescribed a CPAP machine to help with your sleep apnea that was sufficient evidence in the eyes of VA for a 50% VA sleep apnea rating. VA personnel were like me; they assumed doctors did not prescribe anything that was not medically necessary.

So, a prescription for a CPAP was proof that it was required for treatment of sleep apnea.  Now, you need more than that because VA refuses to assume anything.

[blahsaysme2u 155]

buck didnt you just post this on my post?  maybe this will help explain? it made sense to me. even though it doesnt make sense in general, but at least the explanation of the va policy is explained well. hahaha

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

[Buck52 3,235]

The VA is cracking down hard on sleep apnea claims  its not like it use to be...get a sleep study done and if you have S.A.  VA will diagnose you for Sleep apnea and issue you a C-pap machine  (''Automatic 50%) use of a C-pap  machine (not true anymore) ...even if they say its  Required necessary to use   can still be denied 

[Buck52 3,235]

4 minutes ago, blahsaysme2u said:

buck didnt you just post this on my post?  maybe this will help explain? it made sense to me. even though it doesnt make sense in general, but at least the explanation of the va policy is explained well. hahaha

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

Yes I did  I just found out this info myself...looking at this Veterans medical records  I can't find where the Dr says its medically necessary 'required to use for his well being.

I think the VA Sleep clinic mention'' you have been diagnose for Mild Sleep apnea and will Require a C-PAP to use.''...  this won't fly for a claim.

[Vync 2,290]

Medicare has a definition of "medically necessary: 

https://www.medicare.gov/glossary/m

Quote

Medically necessary

Health care services or supplies needed to diagnose or treat an illness, injury, condition, disease, or its symptoms and that meet accepted standards of medicine.

 

Also check these which are from 38 CFR that discuss what is considered medically necessary:

https://www.law.cornell.edu/cfr/text/38/17.38

https://www.law.cornell.edu/cfr/text/38/17.272

 

[Buck52 3,235]

I wonder if he can go to his VAMC Release of Information and request his SLEEP STUDY RECORDS AND WHAT THE SLEEP CLINIC Doc's said   

like request records from the sleep clinic only on date back to when he had his sleep study?  this would save a lot of time researching.

[Buck52 3,235]

Vync  it seems the VA don't use their own regulations anymore  but use the 

M21-1MR  As their playbook to adjuicate all claims and they find in their ''new''policies a way to deny Vets.

[JKWilliamsSr 107]

14 minutes ago, Buck52 said:

“When determining whether the 50-percent criteria are met, the key consideration is whether use of a qualifying breathing assistance device is required by the severity of the sleep apnea.”

A little bit later on, the manual now says,

“Use absent a medical determination that the device is necessary does not qualify.  The regulation requires that the device be necessary and this is a medical question.”

That last phrase should be a warning – and a clue – to you.  In the past, if you presented evidence that your doctor prescribed a CPAP machine to help with your sleep apnea that was sufficient evidence in the eyes of VA for a 50% VA sleep apnea rating. VA personnel were like me; they assumed doctors did not prescribe anything that was not medically necessary.

So, a prescription for a CPAP was proof that it was required for treatment of sleep apnea.  Now, you need more than that because VA refuses to assume anything.

In the end this is going to be overturned via the CAVC but that is a few years down the road and it sucks for vets that will now have to go through the VA crap.  

The biggest way to defeat this hidden rule is the DBQ.  Question 2c states "Does the Veteran Require the use of a breathing assistance device such as a continous positive airway pressure (CPAP) Machine?  It is a simple yes or no question.  Since the Sleep Apnea DBQ is simplistic in nature I think many will be able to get their doctor to fill it out and check the necessary box.  The Sleep Apnea DBQ does not have an area to provide a nexus for service connection.  It is only about the diagnosis and treatment itself.  

If the DBQ is filled out by anyone other than a Pulmonologist and they check "No" on question 2c on appeal you need to make sure you challenge the qualifications of the C&P examiner. The VA loves to use PA's and NP's to do C&P exams and unless they have specialized training the cannot make that medical determination and not expect to be questioned about their qualifications to make such a determination.  38,000 people die a year from heart disease with sleep apnea as a complicating factor according to the American Sleep Apnea Association. I do not think there is a Pulmonologist currently practicing that will say Obstructive Sleep Apnea "Does Not" require a CPAP machine. That is a fast track to malpractice IMO. 

[JKWilliamsSr 107]

8 minutes ago, Buck52 said:

Vync  it seems the VA don't use their own regulations anymore  but use the 

M21-1MR  As their playbook to adjuicate all claims and they find in their ''new''policies a way to deny Vets

This is why there is a need for the BVA and CAVC because the VA tends to make their own rules. 

However I will say this.  If the VA cites the M21-1 in a decision for denial that IMO is immediate grounds for a CUE.  When a rater makes a decision they have to follow all applicable laws.  I have never heard of a decision where the M21-1 was cited.  That does not mean they will not deny things.  They will use the wording in the M21-1 as their interpretation of the law but in the end will have it overturned and case law to establish medical necessity. 

[Buck52 3,235]

I totally agree with you JK, But we all know the VA can use some of their tricks up their sleeve  to burn a Vet  like this new policy in the M 21

''Use absent a medical determination that the device is necessary does not qualify.''

I am not wanting to have to go to Appeals (obviously)   it should be clear that the VA has prescribe this veteran a C-pap machine necessary medically to use for his health  or well being and  file a secondary claim to his PTSD.  I am not worried about a nexus I want a Dr to state in his medical records it is medically necessary this veteran Require the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) Machine

*Note*They   (VA) can even use the word'' Required ''Against us if the so choose.

 

[JKWilliamsSr 107]

7 minutes ago, Buck52 said:

I totally agree with you JK, But we all know the VA can use some of their tricks up their sleeve  to burn a Vet  like this new policy in the M 21

''Use absent a medical determination that the device is necessary does not qualify.''

I am not wanting to have to go to Appeals (obviously)   it should be clear that the VA has prescribe this veteran a C-pap machine necessary medically to use for his health  or well being and  file a secondary claim to his PTSD.  I am not worried about a nexus I want a Dr to state in his medical records it is medically necessary this veteran Require the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) Machine

*Note*They   (VA) can even use the word'' Required ''Against us if the so choose.

 

if you can get a DBQ filled out that will satisfy the requirement IMO.   Only a medical professional can sign a DBQ (I believe) and that will satisfy the requirement. 

[Buck52 3,235]

Roger that!

[Vync 2,290]

2 hours ago, Buck52 said:

I want a Dr to state in his medical records it is medically necessary this veteran Require the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) Machine

The ultimate statement would also scold the VA for being stupid. "Additionally, medical devices, such as CPAP machines, are not prescribed unless they are medically required for treatment."