Misdiagnosed with Chronic Fatigue but it was Sleep Apnea

[Cloudbuster]

Hi,

I try to keep it short and hopefully make sense.

2011 Aug - Got out did Pre discharge Disability Claim with VSO on base before I went on final leave.
2011 December - VA Examination, Chronic Fatigue Syndrome, I dont have a copy of this exam only the one from 2013.
2013 June - Chronic Fatigue Syndrome DBQ
This Dr. typed in section #1 Diagnosis;
If there are additional diagnoses that pertain to chronic fatigue syndrome, list using above format: The veteran was misdiagnosed in May 2011. He does not and he never did have chronic fatigue syndrome.

in section #2 Medical History:
a. Describe the history (including onset and course) of the veteran chronic fatigue syndrome: Veteran was tired and sleepy for a couple of weeks and was fine one month later. Asymptomatic at this time.

2013 Aug - Rating Decision from the 2011 claim it took 2yrs to complete.
in this rating Decision there is no mention of the DBQ for Chronic Fatigue Syndrome in the denial area and there are no deferred claims. There are 9 claims some granted and denied but nothing about the Chronic fatigue.
They only mention the Chronic Fatigue DBQ in the All evidence considered section:

2017 - VA Neurologist put on the comments for my Primary Care Dr.
For Fatigue please consider sleep study

2021 - Was diagnosed with Obstructive Sleep Apnea by private Sleep Doctor

2021 - I got a Rating Code sheet and there no mention of Chronic Fatigue Syndrome.

When I filled the Pre discharge Disability I dont recall we talked about Fatigue syndrome so I am pretty sure it was not part of the claim, but somehow the VA ordered a DBQ for it maybe because it was within the 1yr mark since I got out that I was diagnoses with Chronic Fatigue Syndrome.

 

Would this be considered some type of Duty to assist error? as the C&P Doctor said I was misdiagnosed but then the VA did not order a sleep study to figure out my fatigue back then.

 

So all this time I been having low energy levels / fatigue / sleepiness due to the Sleep Apnea since I got out but I was misdiagnosed and not given a sleep study. Heck even my primary care Doctor failed to follow the Neurologist suggestion to order me a Sleep study.

What are the chances that the VA would grant Sleep Apnea back to 2011 since I dont recall claiming it but again somehow they did a DBQ for the fatigue issue.

 

Thanks.

Edited July 22, 2021 by Cloudbuster
update

[brokensoldier244th]

vba examiner decisions have nothing to do with whatever your  primary care doctor does- they are two separate things.

Your rating was based on what the examiner said at the time, then your claim closed, and they already commented on CFS and said you didn't have it. Examiners can't diagnose, and you didn't have a diagnosis for OSA so a vba exam couldn't have been ordered for you - you didn't meet all the standards at the time.

If you didn't appeal you don't have an open claim to hold your effective date back to 2011. You could file an 20-0995 and reopen it but your new and relevant information (OSA DX)doesn't include the time you would be appealing for and to file a claim for service connection you have to have a current diagnosis unless it's in your 2011 exam, which would be part of your CFile and exit STRS, or VAMC -if that's where the exams were done. Unless you can concede  it under CFR 3.317 due to unexplained chronic multisystem diseases.  So I would start by going to release of information to see if CAPRI has that eval (if it was done by VAMC). If it was a contractor then VAMC won't have it but your CFile should.

[Cloudbuster]

Hi.

I see, then is that normal that they do a DBQ and the decision for such is not documented?
Is not even on the rating code sheet so is like it never happened.

the 2017 sleep study recommendation to my primary care was from the Neurologist at the VA not an exam by the BVA.
But it was never done.

the 2013 DBQ was a contracted exam and they send me a copy that how I saw the notes and was trying to put this together with my new OSA DX.

I guess it suck, they did noticed I was having a severe issue of fatigue within that 1yr of separation but due to a wrong DX I missed out and you know you just let them win.
Now about 10yr later Im trying to get what I deserve as I been having this issue all this time.

 

 

[broncovet]

All is not necessarily lost.  While I agree with Broken Soldier that you should have appealed the 2013 denial, "its possible" or even likely that you reopened that 2013 claim "if you sent in new evidence".  (38 CFR 3.156 b or 3.156 C).  

Va does not always reopen when they are supposed to.  

Even if you did not send in new evidence, if/when you are finally awarded benefits for chronic fatigue system, you can argue you deserve a 2013 effective date (the date you first applied).  

Lets not, however, get the cart before the horse.  First, get Service connected.  Then appeal the disability percentage or effective date or both.  

To get service connected, review your records for evidence of Caluza elements.  Its also possible your symptoms were not documented.

We dont get compensation for a diagnosis, we get compensated for SYMPTOMS of a SC diagnosis.  

Did your chronic fatigue system affect your work?  How?  

 

[broncovet]

Its also possible, or even likely, that your chronic fatigue is really a symptom of sleep apnea.  

You could/should consider appealing the effective date of OSA (if/whn you get the envelope) arguing that it should be 2013, that is was misdiagnosed as chronic fatigue syndrome.  

This could well take an IMO/IME (doctors opinion that your diagnosis of chronic fatigue was at least as likely as not osa, instead).  Be careful, here tho:  OSA is not compensable until you start using a cpap.  You may just have to fight for chronic fatigue rating in addition to OSA.  

Chronic fatigue could also really be PTSD or Mdd, both of which can have some/all  of the symptoms of Chronic fatigue.  

[brokensoldier244th]

6 hours ago, Cloudbuster said:

Hi.

I see, then is that normal that they do a DBQ and the decision for such is not documented?
Is not even on the rating code sheet so is like it never happened.

the 2017 sleep study recommendation to my primary care was from the Neurologist at the VA not an exam by the BVA.
But it was never done.

the 2013 DBQ was a contracted exam and they send me a copy that how I saw the notes and was trying to put this together with my new OSA DX.

I guess it suck, they did noticed I was having a severe issue of fatigue within that 1yr of separation but due to a wrong DX I missed out and you know you just let them win.
Now about 10yr later Im trying to get what I deserve as I been having this issue all this time.

 

 

It's possible that the exam was done  in error and couldn't be cancelled before it was done. VA also may have minorly  screwed it up by not listing it as considered evidence but you didn't have a favorable doctor opinion, or a disgnosis, either. CFS is very specific. OSA is very specific. "Sleep difficulties" is general enough to encompass either so the rater could make a decision based on symptoms, but by claiming a named condition with no diagnosis you paint them into a corner.

I always advise that vets not be doctors and try to claim things all specific like. Go with either the specific diagnosis, or generalities, but don't claim OSA or fibro or dmii or anything unless you have a diagnosis for it first. It's in the CFR. A rater can't just override that, and that's Congress, not us. By claiming a specific condition with no diagnosis of that condition you didn't leave them much choice. 

https://www.law.cornell.edu/cfr/text/38/3.304

Also, caluza elements. 

 

You could appeal it but on what basis? On one hand you have a condition that you claimed where the doctor said you didn't have it and you were misdiagnosed- but since examiners are m not treating doctors they can't diagnose either. At best your decision letter would have a denial, but it's not a DTA error of it's not listed. They didn't not assist, you had an exam.

What did you claim it in relation too? If it was exposure then you might have something but it still wouldn't duty to assist unless you raised the issue the first time. You can't go back and say" but I meant to say CFS/sleep difficulty due to exposure.....". Your treating doctor not following up on a recommendation for a sleep study isn't Claim related to the claim you have denied, but might be enough to raise an effective date argument based on when the symptoms for  OSA started.

You can raise it now as a supplemental claim based on a new theory of service connection, though, but a pre discharge exam isn't inadequate if it doesn't examine you for things you don't claim; they did examine you for what you did claim, if im understanding correctly. I am, however, not in 'work mode' for the next two days, and im not even into my 2nd cup of caffeine, yet.

 

Edited July 22, 2021 by brokensoldier244th

[GBArmy]

I agree with Brokensoldier especially on calling out a specific disability. If you don't have a doc's diagnosis, don't try to be one. Mental health symptoms especially fall under this umbrella. Don't say I have PTSD; say I have a mental health problem that may include, but not limited to anxiety, depression or PTSD. You ask for a disability for PTSD  and it could be denied, where the VA may be able to define and grant your MH condition as something else (less stringent criteria.)