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USMC_VET

How I won OSA secondary to PTSD

Question

A little background first on this specific claim to provide greater context for the readers.

I had no idea that i had OSA until i got married and through the years my wife has told me about how i would snore really loud, stop breathing at night, choke, etc. pretty standard stuff for anyone that has it.  I had buddies in the Marine Corps who told me the same thing after our first deployment, but i had always chocked it up to my dad snored so i snored, the stopping breathing thing was weird but i was 18/19 so your health isnt a primary concern and BAS is only for bones sticking out.  I got out in 2006 and didnt make a claim for OSA until 2016.  First i talked to my primary care then was referred to a VA pulmonologist. He ordered a sleep study and the VA fumbled it sending me to a private facility and did a in home test. When the results came back i saw in my VA health record the Pulmonologist was terse with his message saying he wanting a in facility sleep study so a month later i did mine at the VA overnight.  I was diagnosed with Mild OSA and given a CPAP.

When the CPAP arrived i spent a month trying to get it to work but every morning it would show only 45-60 minutes of time.  I have nightmares at night, some i remember some i dont but would rip off the mask or when i woke up would be so worked up i didnt put it back on.  I do cycles of trying it for awhile and stopping for awhile, giving it a chance because my wife is worried about the OSA and its health effects. 

My claim history was this, as i stated i made my first claim in 2016 and was denied.  I reopened the claim (when that was still an option in 2018) and was denied again.  What i submitted was bascially the VA medical record showing that i had it, that i was ordered a CPAP and sworn statements by myself, my wife and buddies in the Corps that stated they saw symptoms in 2003-2006.  I had NO nexus or medical proof that it began in service

I made a mistake in 2019 when it was denied again and NEVER filed a NOD as i kindof gave up when that and other new claims for increases were denied, but I DID make a intent to file back in July 2019.  I was out of the VA regulation changes loop and didnt know that they had gotten rid of reopening and moved to the Supplemental evidence route so in February through April i decided to really focus on making a quality claim since my 2016/2018 claims were more shot in the dark hoping that the VA would just grant it.  I went to specialists in the field for the claims i was making and got updated diagnosis of symptoms and effects, got my sworn statements (which in my opinion has more 'umph' than a buddy statement) more detailed in terms of observed symptoms, timelines and effects upon my life as well as i went out and got two IMO's. The first IMO was for PTSD from Dr. Elaine Tripi in Michigan whos IMO got the VA to drop their attempt to reduce my rating in 2015/2016 (and i suspect it was because her IMO made a case for an increased rating). In that IMO she detailed my history, current symptoms, etc as well as opined on how my PTSD affected my OSA symptoms and how it interfered with its treatment.  I also got a IMO from Dr. Anaise who wrote a lengthy (near 50 pages) on how my OSA is aggravated by Tinnitus and PTSD and interferes with my ability to go to sleep, stay asleep and interferes with my treatment.  

When i submitted the claim (reopen was still available as an option on ebenfits) my new claims, increase and "reopen" were all lumped together as one big claim and sent off in April. As a sidenote whenever i send my claim i do so through ebenefits as well as fax AND send CERTIFIED MAIL WITH RETURN RECEIPT. i keep a copy of the USPS receipt with tracking, Cert Mail receipt and the return receipt and staple that together with my hard copy claim evidence in a folder for each claim ive ever made.  The VA has a way of "losing" evidence and if you ONLY submit via ebenefits, regular mail and/or fax you cant prove they received it per say.  This DOESNT mean they wont pretend they didnt get it but what it does is allows you to prove upon appeal that YES you did send it in the time window necessary for your claim AND that they did receive it because the return receipt shows Jim VArep did in fact get it on such and such day. So if you get denied its really important to look at your cfile after to see what evidence the rater actually looked at and if they dont have ALL the evidence in that file you can appeal on those grounds in conjunction with more evidence if necessary that X doctors exam or IMO proves your case, wasnt considered AND the VA had received it.

So a few weeks after i submitted it, the VA sent me the normal letter stating they had received my claim for X,Y,Z  New & increased claims but i didnt see anythign about OSA which was weird.  a week later i got a letter from the VA saying that my claims for OSA were not new, had been denied previously and were not on appeal and gave me a list of options. I chose Supplemental Evidence since the IMO's were "new evidence"  to be considered and met the criteria and it had been over a year since my denial so i couldnt submit a NOD and get the backdated effective date.  This was my fault. One i gave up in 2019 and didnt file a NOD to hold my place and Two i didnt keep up to date with new VA regs regarding reopened claims, etc.

Since that supplemental claim was received on 4/24/20 (todays date is 6/18/20) I have had two psych exams and two records reviews through QTC (private company the VA contracts to do DBQ/exams).  The first pysch exam was related to my request for an increase for PTSD back in April and in May i had a NP contact me who was reviewing my med records for OSA and had follow up questions regarding my condition both current and past.  In that conversation i talked about how i never went to go get checked because i never knew what OSA was at that time, thought it was normal to snore, etc., how BAS is frowned upon in the Marines for things like that, my history with it since i got out up to now and how my nightmares make me rip off the CPAP at night.  I did ask her if she had seen my imo, other evidence and she said no JUST my medical record.  I know examiners arent raters and all but I find it weird that VA will deny IMO's as valid if they dont "review veterans entire file" but will accept something from a examiner if its negative when only their VA med file is shared.  Its great advice to always bring your evidence with you to a exam but given the current COVID situation ALL of my exams thus far have been telephone or video. I asked her what the exam was specifically for or what they asked her to examine and she said it was basically whether or not my OSA was service connected and occured in service. I do believe it was but i was making the claim as SECONDARY to PTSD and/or Tinnitus as an aggravation which she was unaware of. I fired off some angry messages via the IRIS system to the VA regarding this (no idea if they got included in my record or reached a rater since the only response i got was "thank you for contact us heres how to make a new claim").  

Within the last 3 weeks i had a 3rd & 4th "exam". The third was a MD who was reviewing my records as well and asked alot of the same questions, she was also unaware this was a secondary claim for aggravation and had seen no evidence submitted or my entire file so i went through it with her again.  The 4th exam was another psych interview which i was told was to examine my secondary claims to OSA, but knowing the VA i knew it was basically another review of my ENTIRE PTSD claim ive had as well.  Vets should be aware that even if a exam is about something specific any evidence or statements made that can negatively effect an existing general disability & will be held against you.  This was quite clear when he just asked about current PTSD symptoms and never ONCE asked about my OSA, etc. So i had to bring that up myself. 

VA.gov check claims hasnt been updated since a week after my claim submission. my OSA claim has said "we dont know your status" even now and my other new/increased claim stopped after "request for more information" (i.e. requesting new QTC exams).  So ever few days i check that as well as ebenefits to see if any of the DBQ's show up in my blue button (none have but im guessing because QTC doesnt have to update the way in house VA does).

Finally today i see on my disabilities list that OSA was granted secondary to PTSD for 50% bringing me to 90% with an effective date of 4/24/20.  I know that this ISNT the same as a letter from the VA but i know someone who is a VA rater who has been giving me updates on my record so im 99% certain this ebenfits update is accurate.  

 

 

The takeaways are this.

1) Do the damn research and work the claim yourself, no VSO or rep is going to care as much as you do. You care about your case, they have 15,50,100 other vets whos cases they are working and even if they are a great VSO/rep they cant possibly give a crap as much as you do.  dont hope the VA just "gives" you the rating you deserve make it so they cant NOT give it to you with the proper evidence.
2)IMO's are golden. I know not everybody can afford them, i couldnt per say and had to sell some things to come up with the $500 for Dr. Tripi and $1500 for Dr. Anaise, but they were well worth it, without them i definitely wouldnt have gotten my OSA approved. I think have both a MD stating both the phyiscal and mental nexus and a Psychologist stating the pure mental side gave it a one two punch.  

3) Along with the IMO go to doctors/specialists in your area and get documented evidence of you issue, ask them to be detailed in the exam notes.  I even emailed a couple time asking the doc (this wasnt for OSA but a different claim, but good general advice) asking them to update the notes to specifically include certain symptoms and effects upon quality of life.  Having this helps alot, combined with IMO's its very difficult for a random NP to override their  findings with one exam or phone interview.  Remember the VA is military based in that the ranking officer rules.  So if you only have a NP (nothing against NP's this is just how the VA works) from a urgent care saying you have OSA caused by PTSD or that your shin splints are 8/10 pain and they have a pulmonologist, MD or specialist say its only 1/0 and doesnt effect guess who wins. If you have two psychologists but yours has great bonafides and background and theirs has only been practicing for 5 years solely at the VA yours wins.  Im not saying dont go to a primary care to document because youll only see a NP all evidence helps but be aware if they pull out a MD who counters that exams findings youre likely to lose. Because they will always want to lean to denial and if their person has more experience or is a specialist that will win over what  you submit. Dont give them an option, and even if they do decide to rule against you, you can make a great appeal based on the fact they sided with their NP over a specialist in the field your making a claim for who knows more.

4) Never let claims die. Dont make a new claim until your ready to with great evidence (file a intent to file first though to preserve backpay/effective date) If denied make sure you keep a reminder about the NOD date and when you do file a NOD make sure that is certified mail with return receipt to prove you mailed it/VA received it before the deadline, because if you dont and they can make a case it was received 24 hours after the NOD deadline you lost you backpay date and possibly years of backpay.  Now there are situations where claims die but if theres a opportunity to still make it on appeals hire a GOOD (there are alot of crappy ones) appeals attorney and move forward. I know they take 20%+ of your backpay but if you aent comfortable enough to navigate the appeals process its well worth it.  

5) stay up to date on new VA regs, Hadit is a great source for this you dont want to be like me thinking that certain avenues are still open and they arent. If I had stayed up to date i wouldve been able to file earlier for the OSA and preserve YEARS AND YEARS of backpay now im only going to get 2 months.

6) I didnt do this for this claim although i should've and kept a diary of when i was using the CPAP, roughly when i ripped it off, data on how long i wore it, frustrations over not being able to wear it, info on my nightmares causing me to rip it off etc.  years of diary entries wouldve been a help. I didnt need it in the end but if you cant afford a IMO things like this can help because theres NO SUCH THING AS TOO MUCH EVIDENCE.  A diary is one of the key things that helped me win my migraines case.  for months prior I kept a diary of my headaches and effects, then transcribed them into ebenefits health diary.  I am not perfect at it but i now write as much as i can as often a i can in this diary about ANY service connected or possibly service connected illness (especially things that could be considered aggravated by a service/possible service connected disability).  That way when you are making a claim or fighting a reduction you can pull out timestamped entries for months/years relating to it and it makes it harder for a rater to think you pulled this out your but last month to make a claim. 

 

A big thanks to everyone on HADIT.  i did alot of research here through the years to help make my claims better and it worked

Another big thanks to Dr. Anaise and Dr. Tripi for their outstanding IMO's that helped me win this. 

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