Sleep apnea claim possible denial

[grayling12]

I had my 4 minute sleep apnea C&P exam 3 weeks ago. I filed it as: sleep apnea secondary to ptsd, depression, alcohol abuse, the medications to treat them with obesity as an intermediate step. 

My VSO read me the examiners opinion which was basically that ptsd and sleep apnea are not related, 'not service connected". My evidence included a weak, bought nexus letter from a psychologist, prescription list, an obesity nexus statement in my VA treatment notes from my VA psychiatrist linking my weight gain to chemical changes in my brain due to my ptsd, a medical article showing that alcohol will trigger apnea events even in people without sleep apnea to help show it as an aggravation and my weight records since going to Iraq to show the weight gain progression. I even included the VA memo allowing obesity to be used as an intermediate step in my statement in support of claim so they couldn't play dumb and act like they didn't know about it. I haven't received the denial letter yet, but want to have a game plan ready to fight the denial when it comes. 

It didn't sound like the examiner considered anything other than the ptsd connection.

What steps should I take to fight this likely denial? I have never fought or appealed anything before.

Thanks

[broncovet]

Its rather incredible you got to 90% without at least one appeal, but you are obviously the exception.   I see it that you have 2 choices:

1.  Go ahead and get a great medical opinion, submit it now and possibly head the denial off right now.  Keep reading for types of medical opinions and choose which is best for you.  

2.  Wait and see if you are denied, and THEN file a NOD (Notice of Disagreement) then get a favorable medical opinion.  

    The two choices, above, are "Time vs Money". as you will likely need to pay for an IMO (Independent medical opinion). 

However, since you will likely need a favorable independent medical opinion to win this, there are things you can do to minimize the cost of an IMO:

   1.  Change your provider.  Since it sounds like your previous VA doc was not very Veteran friendly, try to get someone else who may be more Veteran friendly.  There are several ways to do this.  If your VAMC is a very large hospital with multiple docs who work on Vets with sleep apnea, just ask to change your provider.  However, if your VAMC is small, like mine, it has only one doc that provides sleep care, so you could travel to a nearby VAMC and you could get a more favorable opinion from him/her.  So, getting another (favorable) opinion from another provider may not cost you anything if you can. get a more favorable opinion from another VA sleep doc.  

2.  Shop around for a low cost IMO provider.  There are basically two types of medical opinions.  One kind is a MEDICAL EXAM opinion, where a doc examines you and renders an opinion.  (IME, or Independent medical Exam). The second type "does not require" an exam.  Instead, the doctor reviews your records (without an exam) and writes a more favorable opinion.  The choice of whether or not you need an exam or just a favorable opinion is yours.  "IF" there was a good sleep doc near you, then I would go for that, because an in person exam is stronger than just a doctor writing an opinion.  If all you are going for is an opinion, then you can shop nationwide, while you would need to travel to the doctors office if you need an exam.  

Wild card:  If you have (other insurance) then you may be able to get a second opinion and get all or some of that second opinion paid for by your insurance company.  I have no idea of what insurance you have, if any, so I wont guess that one.  

[ShrekTheTank]

I am going to add my old post here, and what I used to get it.  The VA issued my CPAP machine and the doctor said what king of sleep apnea I have.  I chose to not get a IMO, and this probably took me longer.  This was written up by a lawyer, but should give you some good ideas.  I also sent them 4 peer reviewed articles of how they are connected.  I hope this helps.  Good luck and never give up!  

 

This is what won my sleep apnea.  Please feel free to use this in your fight against the VA.  Most would not need to be this long, but I would use what you feel is needed and fits with your claim.  

Dear Ladies and Gentlemen:
Supplemental Claim is elected. If additional evidence or clarification is needed, please
contact me by facsimile, telephone, or U.S. mail.
The above veteran received a Rating Decision dated March 12, 2020 and wishes to
appeal this decision regarding the following issues:
1. Service connection for sleep apnea.
The Veteran is entitled to service connection for sleep apnea. The Board remanded the
veteran’s claim because the VA failed to provide a medical examination. The VA finally
provided an examination on February 17, 2020. Counsel has not received a copy of the
examination and therefore cannot fully assess its sufficiency. However, from the portions of the
examiner’s opinion provided, it is inadequate for several reasons. First, the examiner determined
that because the veteran was not diagnosed until 11 years after his service, it is less than likely
that the veteran’s sleep apnea is related to his service. A lack of medical records is not negative

evidence that disproves the veteran’s claim. Sleep apnea does not require immediate medical
care. Moreover, sleep apnea in particular is a condition that is often undiagnosed, as noted by the
attached article by the University of Washington. It is inappropriate to discredit the veteran’s
claim merely because he does not have a treatment record for a historically underdiagnosed
disorder that does not require immediate treatment.
Furthermore, the examiner determined that the veteran’s sleep apnea was likely not
caused by the veteran’s military service because “exposure to burn pits does not cause a physical
obstruction in the airway, which is the cause of sleep apnea.” Some older research questioned
whether burn pits could cause sleep apnea, however the most recent academic research from
May 2020, which is attached, shows that sleep apnea is caused by exposure to burn pits. The
basis of the examiner’s decision is based on a decisively faulty premise and is therefore
inadequate.
Moreover, the examiner entirely failed to consider secondary service-connection due to
the veteran’s PTSD. PTSD is a well-established cause of sleep apnea, as noted in the attached
articles. The examiner’s failure to consider secondary service connection due to the veteran’s
PTSD, which is noted throughout his medical records, renders the examination inadequate. If the
VA provides an examination, it must be an adequate one. The multiple failures committed by the
examiner renders their opinion inadequate and the veteran must be provided a new examination.
Please readjudicate the claim accordingly.
Also attached are the following articles:
1. Visesh Kapur et al, Medical Cost of Undiagnosed Sleep Apnea, Pulmonary and Critical
Care Division, Department of Medicine, University of Washington.
2. Chelsey Poisson et al, A Pilot Study of Airborne Hazards and Other Toxic Exposures in
Iraq War Veterans, International Journal of Environmental Research and Public Health,
published May 9, 2020.
3. The Connection Between PTSD and Sleep Apnea, Sleep Foundation.
4. Peter J. Colvonen et al, Obstructive Sleep Apnea and Posttraumatic Stress Disorder
among OEF/OIF/OND Veterans, Journal of Clinical Sleep Medicine.
Additionally, based upon common errors committed by the VA, the Veteran argues and
preserves the following:
Examination inadequate. If the VA Secretary provides an examination, it must be an
adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulation instructs
adjudicators to return as inadequate an examination report that is not supported by sufficient
findings or does not contain sufficient detail. 38 C.F.R. § 4.2; see also Bowling v. Principi, 15
Vet. App. 1, 12 (2001); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97 (2010) (citing Daves v.
Nicholson, 21 Vet. App. 46, 51 (2007), for the proposition that “...when a medical examination
report was susceptible to multiple fair but inconsistent meanings, the Board erred in failing to
seek clarification”). “Most of the probative value of a medical opinion comes from its reasoning”
and a medical opinion is not, “...entitled to any weight . . . if it contains only data and
conclusions.” Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008).

An inadequate medical examination frustrates judicial review because it does not
adequately reveal the current state of the disability. Hicks v. Brown, 8 Vet. App. 417, 422 (1995).
The necessity of a thorough examination and a thorough explanation of the examined conditions
is simple. The primary purpose for the examination is to require the Board to decide the claim
based on sympathetic development and the resulting accurate view of the veteran’s current
medical status. See 38 U.S.C. § 5103A(d); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
The Board “...must provide for the conduct of an adequate examination during the active stage
of appellant’s (disorder), and must, on the basis of that examination and all evidence of record,
ascertain the existence, extent, and significance under the rating schedule of any (symptom) due
to (the disorder).” Ardison v. Brown, 6 Vet. App. 405, 408 (1994).
If the VA decides a case without an adequate and competent medical examination, it is,
in effect, supplying its own medical opinion, which is remandable error. See Colvin v. Derwinski,
1 Vet. App. 171, 175 (1990). An independent medical opinion must contain sufficient
information so that VA is not exercising independent medical judgment. Stefl v. Nicholson, 21
Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008)
(The Secretary, “...when he undertakes to provide a medical examination to obtain a medical
opinion, must ensure that the examiner providing the report or opinion is fully cognizant of the
claimant’s past medical history”); Stegall v. West, 11 Vet. App. 268, 270 - 71 (1998) (VA
examination remanded for inadequacies of exam on remand).
When the examiner states that a non-speculative decision cannot be reached, the Board
must consider several factors in determining whether the opinion is adequate. First, the record
must demonstrate that the examiner has weighed all procurable information. Next, the examiner
must provide an explanation for his or her conclusion. The record must also demonstrate that an
inability to provide an opinion without resorting to mere speculation “’reflects the limitation of
knowledge in the medical community at large’ and not a limitation—whether based on lack of
expertise, insufficient information, or unprocured testing—of the individual examiner.” Sharp v.
Shulkin, 29 Vet. App. 26 (2017).
Veteran’s lay statements. The VA must adequately review veteran’s favorable lay
statements concerning his medical status. His statements are competent proof. These statements
of his current medical condition need not be supported by contemporaneous, corroborative
medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Dalton v.
Nicholson, 21 Vet. App. 23, 39 (2007) (where Court explained VA was in error when the sole
premise for the examiner’s conclusion was the lack of notation or treatment of the claimed
disability in service); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (noting that the
purpose of section 1154(b) was “...to overcome the adverse effect of a lack of official record of
incurrence or aggravation of a disease or injury and treatment thereof” (citing H.R. Rep. No.
1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035)).
VA must address the credibility and probative value of veteran’s lay statements in its
analysis of veteran’s case. VA must have a valid basis for finding veteran’s lay testimony
incredible where VA concludes that veteran’s claimed injury is one of such severity, it would
have been recorded in service had it actually happened during that time. Kahana v. Shinseki, 24

Vet. App. 428, 433-34 (2011).
The VA must consider lay statements where (1) the, “...layperson is competent to
identify the medical condition, (2) the layperson is reporting a contemporaneous medical
diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a
medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Credible
lay evidence alone is competent to establish the existence of the claimed condition(s). Further, in
some instances lay evidence by itself is sufficient to establish a medical nexus between veteran’s
service and current disability, insomuch that no “medical evidence” is needed to substantiate the
claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
To decide the claim without an accurate record and review of veteran’s lay statements as
to his actual physical condition is in contravention to law and effectively operates to allow the
VA to substitute its own opinions for that of record. This is always harmful error. See Doran v.
Brown, 6 Vet. App. 283, 287 (1994) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990)).
Discounted favorable evidence. VA has the obligation to weigh and consider all of the
evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F.
3d 1295, 1298 (Fed Cir. 2008) (A determination regarding service connection requires
consideration of “...all pertinent medical and lay evidence...”) (quoting 38 C.F.R. § 3.303(a)).
The VA must do this whether it finds the evidence persuasive or not. See Gilbert v. Derwinski, 1
Vet. App. 49, 56-57 (1990).
If the VA is going to discount favorable evidence, it must explain why it did so, make its
explanation understandable to laypersons and provide sufficient detail to facilitate court review.
See Norris v. West, 11 Vet. App. 219, 224-25 (1998); Allday v. Brown, 7 Vet. App. 517, 527
(1995). This is required as a matter of law. See 38 U.S.C. § 7104 (d); Gilbert v. Derwinski, 1 Vet.
App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Schafrath v.
Derwinski, 1 Vet. App. 589, 592-93 (1991); Daves v. Nicholson, 21 Vet. App. 46, 51 (2007)
(citing Meyer v. Brown, 9 Vet. App. 425, 233 (1996)).
VA errs when considering the effects of medication on the appropriate rating for
appellant’s service-connected condition when those effects are not explicitly contemplated by the
rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). VA errs in taking those effects into
account when evaluating veteran’s disability rather than limiting itself to the symptoms expressly
contemplated by the appropriate rating code. Conditions caused by the adverse side effects of
medications used to treat a service-connected condition should be service-connected on a
secondary basis. Wanner v. Principi, 17 Vet. App. 4 (2003), rev’d on other grounds, 370 F.3d
1124 (Fed. Cir. 2004).
Where a medical record is incomplete, the VA should refer the examination report back
to the examiner for clarification. 38 C.F.R. § 4.2. This is also the case for private medical
examination reports. Savage v. Shinseki, 24 Vet. App. 259 (2011) (In Savage, the Court
explicitly limited VA’s duty to seek clarification of private medical reports to situations where
“...the missing information is relevant, factual, and objective–that is, not a matter of opinion...”
24 Vet. App. at 270. Specifically, the Court held that when a private medical report is the only

evidence on a material issue, and material medical evidence can no longer be obtained as to that
issue, yet clarification of a relevant, objective fact would render the private medical report
competent for the assignment of weight, the Secretary must attempt to obtain such clarification.
Id. at 267.
Sympathetic development. 38 C.F.R. § 3.103(a) mandates the “...VA to assist a
claimant in developing the facts pertinent to the claim...” and obligates the VA “...to render a
decision which grants every benefit that can be supported in law...” See Cook v. Principi, 318
F.3d 1334, 1337 (Fed. Cir. 2002) (en banc) (noting 38 C.F.R. § 3.103(a) is the regulation setting
forth the duty to assist codified in 38 U.S.C. § 5103A)); see also Roberson v. Principi, 251 F.3d
1378 (Fed. Cir. 2001) (declaring Congress has mandated “...that the VA is to fully and
sympathetically develop the veteran’s claim to its optimum before deciding on the merits.”).
(Quotation omitted).
Included in this obligation is the obligation to weigh and consider all of the evidence. See
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F. 3d 1295, 1298
(Fed Cir. 2008) (A determination regarding service connection requires consideration of “...all
pertinent medical and lay evidence...”) (quoting 38 C.F.R. § 3.303(a)). This pertains to all
claims. Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007); see also Szemraj v. Principi, 357
F.3d 1370 (Fed. Cir. 2004). The VA must consider all evidence whether it finds it persuasive or
not. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). This obviously includes
conscientious, independent consideration of veteran’s lay statements. See Buchanan v.
Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
The Court in Ingram v. Nicholson stated that although there is no legal “...definition of
‘sympathetic reading’, it is clear from the purpose of the doctrine that it includes a duty to apply
some level of expertise in reading documents to recognize the existence of possible claims that
an unsophisticated pro se claimant would not be expected to be able to articulate clearly.”
Ingram, 21 Vet. App at 255; see also Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008)
(Board must consider all theories of entitlement that were reasonably raised by either the veteran
or by the evidence in the record).
Despite such obligation, the VA has failed to develop and adjudicate its decisions with an
eye to allowing the veteran the maximum benefit to which he is entitled, which is a failure in its
duty to assist and outcome determinative error. See Roberson v. Principi, 251 F.3d 1378, 1385
(Fed. Cir. 2001); Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); see also Akles v.
Derwinski, 1 Vet. App. 118, 121 (1991).
Benefit of the doubt and burden of proof. Veteran argues he is being held to a burden
of proof beyond that set by law. The VA holds veteran to an unfair burden. Federal statute
clearly states, “When there is an approximate balance of positive and negative evidence
regarding any issue material to the determination of a matter, the Secretary shall give the benefit
of the doubt to the claimant.” 38 U.S.C. § 5107(b). “...the preponderance of the evidence must
be against the claim for benefits to be denied.” Gilbert v. Derwinski, 1 Vet. App. 49, 53-55
(1990). VA applied the improper standard of proof in this case.

Reasons and bases. VA is required to consider and “...discuss in its decision, all
‘potentially applicable’ provisions of law and regulation.” Majeed v. Nicholson, 19 Vet. App.
525, 529 (2006) (citing Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991)); 38 U.S.C. §
7104(a). The VA must account for all of the evidence whether it finds it persuasive or
unpersuasive, and provide reasons and bases for rejecting evidence. See Gilbert v. Derwinski, 1
Vet. App. 49, 56-57 (1990). It must weigh the credibility and probative value of all evidence. See
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).
If VA is going to discount evidence and refuse to provide veteran a medical examination,
VA must explain why it did so. These reasons must be sufficient to allow veteran the opportunity
to understand why it did so. See Norris v. West, 11 Vet. App. 219, 224-25 (1998); Allday v.
Brown, 7 Vet. App. 517, 527 (1995). This is required as a matter of law. See 38 U.S.C. §
7104(d); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App.
36, 39-40 (1994). This is not only for the benefit of the veteran, but also the federal appellate
court which will ultimately review the claim and its adjudication. See Allday v. Brown, 7 Vet.
App. 517, 527 (1995).
Missing medical records. “Since the VA has been unable to obtain the veteran’s service
medical records, it has a heightened duty to explain its findings and conclusions.” See Lee v.
Nicholson, 2006 U.S. App. Vet. Claims LEXIS 1393. More specifically, in Washington v.
Nicholson, the Court held that when a veteran’s records are presumed lost or destroyed, the
Board is “...under a heightened duty to consider and discuss the evidence of record and supply
well-reasoned bases for its decision as a consequence of the appellant’s missing SMRs.” 19 Vet.
App. 362, 371 (2005). The Court held the Secretary breached the duty to assist in failing to
“explore alternatives” to missing service records and “...VA should make reasonable efforts to
obtain such reports, statements, or other records that might provide corroboration for the
appellant’s assertion...” of an in-service injury, disease, or event. Id.
The Secretary’s duty to assist includes a duty to obtain any “...relevant records held by
any Federal department or agency that the claimant adequately identifies and authorizes the
Secretary to obtain.” §38 U.S.C. § 5103A(c)(1)(C); §38 C.F.R. § 3.159(c)(2); Loving v.
Nicholson, 19 Vet. App. 96, 102 (2005). Efforts to obtain records in the custody of a Federal
department or agency must continue unless “...VA concludes that the records sought do not exist
or that further efforts to obtain those records would be futile.” 38 C.F.R. § 3.159(c)(2).
“If VA . . . after continued efforts to obtain Federal records concludes that it is reasonably
certain they do not exist or further efforts to obtain them would be futile, VA will provide the
claimant with oral or written notice of that fact.” 38 C.F.R. § 3.159(e)(1). The notice must (1)
identify the records VA was unable to obtain; (2) explain what efforts the VA took to obtain the
records; (3) describe any further action VA will take regarding the claim; and (4) notify the
claimant that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-
(iv).
Negative evidence and mischaracterization of claims. The Board may not consider the
absence of a medical notation to be negative evidence when there is no reason a medical
examiner would have commented on a particular matter. Buczynski v. Shinseki, 24 Vet. App.

221, 224 (2011). See Douglas v. Shinseki, 23 Vet. App. 19, 25–26 (2009) (“...the duty to gather
evidence sufficient to render a decision is not a license to continue gathering evidence in the
hopes of finding evidence against the claim”).
The Board may not mischaracterize veteran’s claims. Mischaracterization of claims may
lead to considering issues outside of “...the scope of the appeal, applying the wrong law, and
engaging in the wrong analysis.” See Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014) (the
Murphy Court recognized mischaracterization of claims as the catalyst to improper reduction of
claims, which the Court indicated has a “...’chilling effect’ in the administrative appeals
process...”).
Medical treatises. A medical article or treatise “...can provide important support when
combined with an opinion of a medical professional” if the medical article or treatise evidences
“...generic relationships with a degree of certainty such that, under the facts of a specific case,
there is at least ‘plausible causality’ based upon objective facts rather than on an unsubstantiated
lay medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998); see also Wallin v. West, 11
Vet. App. 509 (1998).
“A veteran with a competent medical diagnosis of a current disorder may invoke an
accepted medical treatise in order to establish the required nexus; in an appropriate case it should
not be necessary to obtain the services of medical personnel to show how the treatise applies to
his case.” Hensley v. West, 212 F.3d 1255, 1265 (2000). “An ‘evaluation’ of treatise evidence
should be made in the first instance by the BVA.” Timberlake v. Gober, 14 Vet. App. 122, 131
(2000). If the Board fails to consider medical-treatise evidence by the veteran, the Court will
remand the case to “...the Board to evaluate “that evidence” to see if it supports a nexus.” Id.
Due process. Veteran also contends the Regional Office’s (RO) failures as expressly
asserted in this Notice of Disagreement rise to the level of the Secretary’s denial of Veteran’s
procedural due process protections, guaranteed to U.S. military veterans by the Fifth
Amendment, U.S. Constitution. See Cushman v Shinseki, 576 F.3d 1290 (Fed. Cir. 2009).