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

[Cloudbuster]

HI,

I never appealed the 2013 decision as I got a 50% and was happy. Now that I am a few years older and looking at my VA records found this DBQ and was wondering why it was not listed on my rating code sheet, that why I came to ask for advice.

So this are the official conditions claimed on my pre-discharge disability claim in 2011 that was decided on 2013.

LF 3rd finger loss ROM (New)
LF hand crush injury (New)
lower back condition (New)
numbness and tingling LF 4th and 5 th fingers (New)
RT foot condition (New)
scar lower back (New)

We VSO or I never claimed for CFS but somehow the VA added that DBQ and two of them it seem, I dont have copy of the 2011 exam.

I believe I dont have Chronic fatigue but my fatigue now I know is due to my recently Diagnosed Sleep apnea.

So that means I been showing the fatigue/tired/low energy symptoms since 2011 but because they never gave me a sleep study somehow I was misdiagnosed with CFS.

The CFS DBQ from 2011 and 2013 is listed on the decision letter as considered evidence.
But is not listed as denied, as I never claimed it but somehow I got two exams for CFS based on me reporting to feel fatigue/tired. My STR does have sleep disturbances on it.

I found on my STR that I was prescribed Diphenhydramine to help me sleep in 2008 because I reported problems sleeping but no other specific symptoms. 

 

Right now I have service connected:
70% PTSD 
10% GERD
10% Lower back
10%Hands finger
10% Right foot
10% tinnitus
20% Peripheral neuropathy right upper extremity
20% Peripheral neuropathy left upper extremity

 

To recap:

Active duty 2005-2011
I never claimed CFS.
never got a pre-discharge exam It was only a pre-discharge disability claim.
Exit exam have Frequent trouble sleeping with YES. Dr. comment say: sleep 5 hours night.
I was diagnosed with CFS - not sure exactly by who, if it was a VBA Doctor or VHA Doctor in 2011.
Then the CFS diagnosing was taken away by a BVA Doctor.
Given two CFS exams.
reported sleep disturbance while in service.
Reported being fatigue and sleepy within 1 yr of getting out.
been reporting to my VA Doctor fatigue / low energy on random days.
Referred to the Neurologist to figure out why I feel fatigued. He suggested a sleep study.
Never given a sleep study.

This year I decided to get a sleep study done on a private clinic and came positive for OSA. Would start using a CPAP within the next two week. As this was done recently.

 

So I would claim Sleep Apnea and then ask the Doctor if he can opine/ believe my misdiagnosed chronic fatigue syndrome back in 2011 was at least as likely as not OSA as I reported being fatigue/sleepy. 

 

What you guys think, would the fact that I never claimed CFS or SA be a factor for them to deny any possibility of an earlier effective date of 2011 due to the misdiagnosis. 

Any other advice.

 

Thanks!

[GBArmy]

Cloudbuster If I read you correctly, your 8 disabilities give you a combined rating of 88.66% (not considering bilateral.) Anyway, you are rated at about 90% combined. You have to do some basic leg work and figure out if you can get SA at 50% or not by your symptoms, with the prescribed CPAP machine and what that would do for you on moving the needle.  I think you are very close BUT the VA isn't about to do their Santa Claus stuff just for you. They are very hesitant of handing out ratings for SA, especially if it can get you to the hondo club (100%.)You make the 10 year rule so it is a little harder for the VA to re-adjust your ratings downward, but there is a school of thought that if you don't increase your combined rating with submitting a new claim, you don't do it, or at least delay submitting until your conditions, including any new disabilities or increase would bump you up.. The major exception I would think is if you want to get it service connected anyway because of the potential it could lead to your death. 

[Cloudbuster]

GBArmy

I looked at my rating code sheet and all disabilities are Static.

Yes I believe if I get this one connected at 50% it would take me to the 100% club.

I just have to figure out if is worth trying to get them to change the effective date if I do get it service connected to 2011 but that might be a big challenge or impossible. 

[GBArmy]

Cloudbuster

If you can get the rating increase with the new disability AND you also may have a decent shot at getting sizable backpay, make the investment and get a good lawyer. EED's are a difficult nut to crack and lawyers have a lot better chance of presenting the argument and getting approved than a veteran by himself IMHO.  Others may disagree and think you can do it yourself. And maybe you can, but you have a lot of moving parts and I would be looking at it as hiring a lawyer to get 100% and nice backpay as an investment that would most likely improve your odds of success, especially if you end up going to the BVA. That's my 2 cents.

[brokensoldier244th]

This is one of those situations where it might be warranted to take it straight too bva due to age of claim and moving parts. It seems that if you went the exposure route it might be a presumptive but only you know where you served and when. 

[pacmanx1]

OK be forewarned if you are trying to seek any type of EED (Earlier Effective Date). As Bronco suggested the first thing would be to get service connected first then seek a better effective date.  The problem with seeking an EED is that the VA goes by symptoms not diagnosis. A change in diagnoses is not a basis for filing a CUE claim. If you can prove by medical evidence/records that you had symptoms at the time of your original claim, you can then ask the VA to consider that evidence. Keep in mind that to get a grant for SA (Sleep Apnea), you would need persistent daytime hypersomnolence for a 30% rating and you had to have a CPAP machine to get the 50% rating.

Now CFS (CHRONIC FATIGUE SYNDROME) is a different animal altogether and  to get a minimum rating of at least 10% you would need a licensed physician to prescribe bed rest and treatment. (Please review the Note below this rating). Unless you can prove that you should have been given a 100% rating that does not need a physician prescription. This is just the regulation now and it may be different at the time of your original claim, but it is best for you to review them and know what they were at that time. Also, you should request a copy of your C-File so you can know what was/is in your records. If I am off someone will chime in and correct me.

6354  Chronic Fatigue Syndrome (CFS):  

               Debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), or a combination of other signs and symptoms:  

Which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care ........................... 100  

Which are nearly constant and restrict routine daily activities

 to less than 50 percent of the pre-illness level, or; which

 wax and wane, resulting in periods of incapacitation of at least  six weeks total duration per year .......................60  

Which are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year ........... 40  

Which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year ............ 20  

Which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or; symptoms controlled by continuous medication ....... 10  

Note: For the purpose of evaluating this disability, incapacitation exists only when a licensed physician prescribes bed rest and treatment. 

6847   Sleep Apnea Syndromes (Obstructive, Central, Mixed):  

Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy...............100 

Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine......... 50 

Persistent day-time hypersomnolence .................. 30

Asymptomatic but with documented sleep disorder breathing........... 0

 

Edited July 23, 2021 by pacmanx1