Sleep Apnea CUE & Appeal

[farrisbueller]

Hello Everyone,

I have looked for guidance online pertaining to my unique situation for quite a while and I could not find any useful information, so I thought I would post it here after discovering this amazing website and after seeing so many knowledgeable individuals in these forums helping others. I truly apologize if I am giving more information than what is needed.

I'll preface this by saying that I was not seen during my time in service for Sleep Apnea directly, but had developed the symptoms during my service, and was not even aware of the condition myself. I was hesitant to file for something that I was not seen for, but because of the insistence of my wife, I included it in my claim. I separated from the United States Army in APR 2017 and filed an initial disability claim on January 25, 2018. I went to a sleep study on March 3, 2018. A decision was made for this claim on March 28, 2018.

I was granted 70% service connection for the following:

- Sleep Apnea - 30%

- Bilateral Pes Planus (claimed as bilateral flatfoot) - 30%

- Lumbosacral Strain (claimed as low back condition) - 10%

- Radiculopath Right Lower Extremity - 10%

- Radiculopath Left Lower Extremity - 10%

- GERD - 10%

- Right Shin Splint - 0%

- Left Shin Splint - 0%

 

 

I filed for an increase on the Sleep Apnea condition in OCT 2018 after the VA scheduled an additional sleep study in OCT 2018 where the provider advised that I needed a CPAP. I am unsure why they determined I needed a CPAP in OCT 2018 when I had an initial sleep study in MAR 2018, but I was just following the VA's directions. I had suffered through these symptoms for years without the use of any CPAP therapy, so I was still unaware when I would receive a CPAP. I ended up purchasing one out of pocket.

 

 

The VA sent a decision in NOV 2018 stating the following:

 

1. The rating dated March 28, 2018 was clearly and unmistakably in error for granting service connection for obstructive sleep apnea. We are proposing to discontinue service connection for this condition.

 

2. A decision as to whether the rating dated March 28, 2018, was clearly and unmistakably in error for granting service connection for Lumbosacral Strain is deferred.

 

3. A decision as to whether the rating dated March 28, 2018, was clearly and unmistakably in error for granting service connection for Radiculopathy Right Lower Extremity is deferred.

 

4. A decision as to whether the rating dated March 28, 2018, was clearly and unmistakably in error for granting service connection for Radiculopathy Left Lower Extremity is deferred.

 

5. The rating dated March 28, 2018 was clearly and unmistakably in error for granting service connection for GERD. We are proposing to discontinue service connection for this condition.

 

 

At this point, I'm unsure what to do and what option to pursue, so I decide to not challenge their decision. About a year later, I receive a Decision Letter on 10/3/2019 stating:

 

- Sleep Apnea 30% - Severed - 1/1/2020

- GERD - Severed - 1/1/2020

- Lumbosacral Strain (claimed as low back condition) - 10% - Continued

- Radiculopath Right Lower Extremity - 10% - Continued

- Radiculopath Left Lower Extremity - 10% - Continued

 

During the entire process after separating the military, I was clueless on how to schedule appointments through the VA, how to log in to ebenefits (Now VA.gov), and how to access additional resources. Fast forward to MAR 2021. I am at an appt with my provider and she is looking through my medical history and sees the sleep study scans. I advised her that I have a CPAP, but tell her the VA never sent me one and they severed the service connection due to me not being seen while in service. She then submits a referral for the VA to send me a CPAP and advises I should try and appeal this. She states that if I did not have the symptoms before the military, filed within a year of separating, and the sleep studies show that I currently have  obstructive sleep apnea, then I should appeal it.

 

I reluctantly go to the VA office in my city and present this situation. He echoes the statement of the initial claim filed within one year of my separation and the sleep study results showing OSA. I do some research and see that Sleep Apnea is not a condition mentioned in the list that the VA considers for automatic service connection. The VA representative assists me in submitting a supplemental claim on July 9, 2021. I thought this was past the year mark of appealing, but he submits it anyway. On July 15, 2021, I receive a decision stating it was denied. The VA rep advises me that in the system he is looking at, the decision notes state there is no nexus link, so I would need to get a Nexus Statement from my provider and it should finally help get it approved. My provider has no appointments until 2022, so I do research.

 

I find Dr. Joseph Krainin with www.singularsleep.com. I get in contact with them, and after reviewing my medical history, they advise that they can provide me a Nexus Letter linking my Sleep Apnea secondary to my Lumbosacral Strain and Bilateral Radiculopathy, as well as providing additional information on the likeliness of the Sleep Apnea developing during my service since it was reported on my MEPS document. I spend $800 on this document and hope it will change something.

 

I submitted this appeal on August 24, 2018 containing this Nexus Statement document.

 

In conclusion, based on how this decision goes, should I give up on the Sleep Apnea service connection after this? Without me being seen during my actual service, is it likely that the VA will not grant it?

 

I hope this was not too much information once again. Thank you all for any help you can provide!

 

[pacmanx1]

It is your call if you choose to continue to try to get your claims service connected. IMHO (IN MY HUMBLE OPINION) It would be a lot better if you get your IMO from a VA specialist. You can contact your provider and have him/her refer you to the Sleep Evaluation Clinic and have them explain your Sleep study and order you a CPAP machine. Sleep Apnea is a silent killer and should be treated if you have it. Also, if you had excessive daytime sleepiness while on active duty could be signs of sleep apnea. 

Disabilities Within A Year After Discharge | Veterans Affairs (va.gov) 

Edited November 5, 2021 by pacmanx1

[Berta]

Personally I would NEVER GIVE up on this OSA claim.

"I find Dr. Joseph Krainin with www.singularsleep.com. I get in contact with them, and after reviewing my medical history, they advise that they can provide me a Nexus Letter linking my Sleep Apnea secondary to my Lumbosacral Strain and Bilateral Radiculopathy, as well as providing additional information on the likeliness of the Sleep Apnea developing during my service since it was reported on my MEPS document. I spend $800 on this document and hope it will change something."

If this document fully complies with the IMO/IME criteria here at hadit, it should help your claim. The doctor etablished 2 probative nexus statements.

Here it is:

https://community.hadit.com/topic/53826-read-first-if-getting-an-imo/

I hope they could also bolster their secondary opinion on the OSA as due to the Lumbar Strain and radiculopathy,with good recent abstracts and/or treatices on similar medical associations.

It sounds good to me!

[pwrslm]

 

On 11/5/2021 at 1:29 PM, farrisbueller said:

 I separated from the United States Army in APR 2017 and filed an initial disability claim on January 25, 2018. I went to a sleep study on March 3, 2018. A decision was made for this claim on March 28, 2018.

I was granted 70% service connection for the following:

- Sleep Apnea - 30%

Check the C&P exam the VA did when they denied you and severed the condition from SC. There is no reason here that shows what excuse they used. What you want to see is if the examiner provided a reasonable medical basis for his/her decision that the previous/post service exam was in error. It must overcome your original diagnosis. If the RO did not have this, then it is CUE.

You said the VA diagnosed you with OSA in the original C&P exam and awarded 30% SC. If you were under 1 year from discharge and were diagnosed with OSA, they must prove that you had OSA before you entered the Army in order to overcome that decision of the original award. You should not have needed a Nexus w/in 1 year of your discharge.

If there was no explanation, then you should be able to blow this whole thing up and get back pay from the moment they severed OSA. The RO is supposed to have a medical basis to look at when he applies the medical opinion that the OSA was not SC, but instead was in error. What you want to see then, is the original diagnosis that awarded your SC, and then the opinion that showed it was in error.

If there is nothing showing you had OSA prior to the entrance exam, and nothing is said in the entrance exam about OSA, you should win this.

 

It is easy to get the IMO today and the IMO will grant SC from the day you filed the claim with new evidence. What you want to see is the existing evidence where the RO said an error was made, and insure that it was an error. You do not need the Nexus within 1 year of discharge if there was a diagnosis of OSA for the original grant.

Edited November 8, 2021 by pwrslm

[farrisbueller]

I just read through this once again and see many typos.

The statement: I submitted this appeal on August 24, 2018 containing this Nexus Statement document. 

SHOULD BE : I submitted this appeal on August 24, 2021 containing this Nexus Statement document.