Greetings all,

I am reposting the following here in the hope that I can gain some insight in what to do next.

I had a service connected claim of obstructive sleep apnea with CPAP which was denied because the VA found no evidence in my SMR.

I am a tad miffed because in my service medical record shows my diagnoses of Obstructive Sleep Apnea and to start CPAP therapy in September 2007, but this wasn't even referred to.

I had my CP exam in October 2008 and showed the doctor my SMR with the diagnoses and sleep study results listed on it, but not the actual sleep study. The doctor stated that I had subjectively reported I had sleep apnea but no evidence was given that I had it.

Now my question is should submit a letter of new evidence that includes copies of the overlooked medical records, my actual sleep study refered to in those records, my reciept from the CPAP machine I was issued, my last sleep study on Nov 2008 showing I still have sleep apnea and the print out showing my treament compliance or should I send in a Notice of Disagreement? The whole claim has not been rated yet as they have deferred one decision.

As a side note, thedeferred rating of one of my conditions left me right at 40%. Any guidance on this?

-Phoenix

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Here is what I would do.

I disagree with the decision dated_______ that denied my claim for sleep apnea.

I was diagnosed in service and issued a CPAP machine and still have the condition to this day.
According to the regulations the sleep apnea is service connectable if is was diagnosed in service and a current treatable condition.
The use of a CPAP machine warrants a 50 percent rating per the regulations.

Please reconsider the denial and correct this decision and apply the proper rating criteria for this claim per the title 38 cfr 4.97.

4.97 Disorders of the respriroty system. Sleep Apnea.
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

J

So that would be a notice of disagreement. I was advised to enter new evidence based on the fact that I had filed in August 2008, 6 months ago which puts me in the one year limit for submission of evidence towards a claim and should force them to reopen the case file. Can they legally ignore/overlook evidence of a disease that was incurred in service like they have?

They are oblivious to your case and your cause as they blatently are ignoring your claim.

They need a kick in the backside. The NOD does that. It tells them you are not fooling around and you know the regs. It also tells them to quit jerking you around and that you are not stupid as they seem to stereotype most of us Vets when they do this rediculous crap such as deny a claim such as yours.

J

Thank you for all the help! Here is what I went with.



On December 9, 2008, a decision was rendered to deny my claim for Obstructive Sleep Apnea with CPAP based on incomplete or overlooked evidence taken from my service medical records. I am submitting new evidence that was not included in my Service Medical Records or was overlooked. The decision stated that on or about 19 Jan 2005, I was referred to ENT but no follow up was done.

The overlooked evidence indicted in my Service Medical Records is as follows, copies of these records have been provided:

A1. On 02 APR 2007, I was seen at NNMC Bethesda, MD at the Walter Reed Sleep Clinic for snoring, excessive daytime sleepiness, multiple awakenings at night and symptoms suggestive of Obstructive Sleep Apnea (OSA). A polysomnography/split study was ordered. It was also noted that I had been a shift worker for 20 years which has been found to cause or aggravate OSA.

A2. On 20 SEP 2007, I was seen at NNMC Bethesda, MD at the Walter Reed Sleep for a follow-up to review my sleep study which was conducted on 09 JUL 2007. The sleep study indicated: Respiratory Disturbance Index= 45/Hour Diagnosis= Obstructive Sleep Apnea CPAP 9CM

Doctor Directed START CPAP therapy with 9CM H2O pressure. CPAP was issued.

A3. On 08 JAN 2008, I was seen at NNMC Bethesda, MD for a follow-up. I was issued a chin strap to improve treatment and directed to increase use of CPAP>6-7 hours/night for maximum benefit.



The Following additional evidence has been provided as proof that the OSA began while in military service before my retirement on 31 MAR 2008:

B1. Sleep Study from the Laboratory for Sleep disorders dated 9 JUL 2007 indicted "a significant degree of sleep apnea".

B2. Delivery Ticket from Respira Medical on 20 SEP 2007 showing delivery and receipt of CPAP to myself.

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[size="3"]The Following additional evidence shows the OSA is continuing and currently present as well as treatment compliance:

C1. Sleep study from California Sleep Solutions dated 20 NOV 2008 indicating Moderately Severe Sleep Apnea with a Respiratory Disturbance Index of 49.7/Hour.

C2. CPAP Treatment Compliance Information 7 JAN 2008-5 JAN 2009 indicating treatment compliance.

This new evidence supports a permanent/chronic sleep apnea condition requiring the use of CPAP therapy incurred in or aggravated by military service.


--Hopefully this does the trick. I read that medical records currently in the VA's posession is not considered new evidence, even though it may have been overlooked. That's why I submitted new evidence that those medical records were founded on and the receipt (Items B1 and B2) in addition to evidence showing its a current condition (C1) and being treated from before I left active duty(C2).
I filed this with the California Department of VA and they sent it to the regional office.

Thoughts?
-Phoenix

To J,

I will go for the NOD next. Here is my planned response based on your assistance and additional information.



I disagree with the decision dated December 9, 2008 that denied my claim for sleep apnea.
I filed new evidence on January 16, 2008 supporting my claim in response to the VA's request for additional information within the one year time limit granted by the VA.(Attachment 1).

I request a de Novo review of the decision by a Decision Review Officer and I intend to request a Substantive Appeal if this claim continues to be denied.

I was diagnosed in service and issued a CPAP machine and still have the condition to this day.
According to the regulations the sleep apnea is service connectable if is was diagnosed in service and a current treatable condition.
The use of a CPAP machine warrants a 50 percent rating per the regulations.

Please reconsider the denial and correct this decision and apply the proper rating criteria for this claim per the title 38 cfr 4.97.

4.97 Disorders of the respriroty system. Sleep Apnea.
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

--I think that hits all the boxes for step two. I will wait for them to respond to my new evidence first, checking every 30 days for further activity. Hopefully this letter helps others as well.--
--Phoenix

In your NOD you might ask for a DRO Hearing.

In response to your NOD the VA will send you a Statement of case and ask you your preference for the DRO or the BVA hearing.

I did the same thing and they re-considered as a DRO level person looked at my claim and granted it on the spot.

They just have to look at it.

Hang in there.

J

Thanks J and John,


I am trying to avoid all the delays caused by requesting the DRO at this time. Additionally, when they provide a SOC to me, I want to see if they list the new evidence I just submitted to them(hoping them listing it will win it right there). If I go with the NOD now, it might cause my case to bounce around. I am confident that my claim is valid and I will win this battle. My case is solid and clear cut based on the evidence.

At least that's the way it seems to me.
"Fighting the VA is like a hand of Poker, play your cards and hope you aren't dealt aces and eights."
-Phoenix

I always hope and pray that old or new evidence in any Veteran case is not ignored but it is... I am a prime example of evidence being ignored on my case and a Veteran in my group also had the same experience... Upon discovery the VA revised each of our claims to our favor or should I say "To support our experiences in the military".... If the VA wanted to really support Veterans then a 25% increase would be just a touch of what we missed during our service for our country.

God Bless our Troops and Veterans

Phoenix

The statement you sent the VA about new evidence may be viewed by the VA as a NOD. Unless you typed in bold letters "REQUEST FOR RECONSIDERATION" you may get a SOC back with your appeal rights. The debate about which takes longer a reconsideration or a NOD/DRO APPEAl is short of iffy. The NOD protects your appeal rights. I believe from what we have discussed here on Hadit that even if you submit a reconsideration request you need to keep track of you NOD one year time limit to appeal.

Keep in mind that the only thing that will prompt a SOC is if the veteran files a NOD and the informal appeals process ends in a continued denial or if the veteran never files a NOD and the one year period to file the nod expires. The primary reason for the SOC is to assist you in preparing your FORMAL appeal (VA Form9) and to get to that point you MUST have submitted a NOD in which the denial was continued. The second reason is to notify you that your appeal period has expired.

If you do file for a reconsideration you must have new and material evidence. In the majority of cases the reconsideration goes back to the same rater who made the original decision. He/she will determine if the evidence is new and material.

Once you have filed the reconsideration, as stated below you must keep track of the one year period. If not you will surely recieve the desired SOC but at that point it is to late as your appeal rights terminated at the expiration of the one year period.

If you have a service officer, they can assist greatly in tracking and determining if the reconsideration is being worked. However, if they tell you 11 months after filing the reconsideration that the VA is working on it you MUST still file your NOD immediately to protect your effective date and appeal rights. If you miss this time line the VA will take its ball and go home quickly as they do not play games with time limits.

Sorry to rant over and over but time lines in the claims process are set in stone.

I agree with Scout that a Reconsideration Request is in order here-

BUT mark your calender- as the NOD year filing deadline could run out before they even get to the Reconsideration Request.

However- this type of request could get you a better and faster decision than the NOD.

The VA failed to act on a Reconsideration Request I had made on a CUE claim but I was able to file the NOD before the NOD year ran out.

I put submission of New Evidence in big bold letters at the top of my form when I sent it in. Hopefully that made it a little more clear. On a side note, I am very happy that Ret Gen Shinseki is the new Secretary of the VA. I used to brief him out of Andrews AFB a lot and he always took care of the troops. He made it a top priority. The best thing is the unit coins he handed out were shaped like dog tags with a slot on the side to open beer bottles. I am watching the clock very closely. Processing claims quickly but inaccurately is not an answer to the current backlog. Anyway, Thank you everyone for your help and I will check back very often and update you all on what happens.

-Phoenix

You raise a few interesting questions, Phoenix... In search of resolution, is a "Request for Reconsideration" more expedient than filing a "Notice of Disagreement"? ... Does it depend on the VARO's backlog of NODs? Or, is it system wide?

You are kind in giving your VARO the benefit of the doubt. Your "new evidence" is actually overlooked ( or shredded, or lost..etc. ) SMR and VA records.

Also, I wonder if a denied claim, under reconsideration, without a NOD, dies with the vet?

The real "New evidence" in my case is the actual sleep study that was done and my receipt for the CPAP equipment... The nail in the coffin is my latest sleep study which says my doctor reviewed the sleep study done and my service medical records from when I was on active duty and my compliance report from my CPAP machine to show it has been used since my last active duty doctor appointment. I will end this submission of "New Evidence" with a statement saying I have no further evidence to submit, please reconsider the decision without waiting the 30 day period for additional submission of new evidence. If the VA reviews it and still refuses to grant my claim or decides to ignore it, I NOD before my year is up.

Bob

I have done reconsiderations and NOD's and I am not really sure which is quicker. I think the VA just treats them almost the same. If you have good evidence you will probably win your claim. The thing I have found most useful is to speak to someone who is actually going to rate your claim be that a DRO or just a claims examiner. Whatever gets you in front of a real person to explain your claim is what has worked for me. I don't think reconsideration is a magic bullet. The only magic bullet is evidence and patience.

Update: My claim was reopened and is being reviewed.
Here is a nice tidbit I found for a poor vet that was denied SC OSA because he didnt have the symptoms of sleep apnea anymore because he used his mask.

It says continued treatment is not enough... Ensure you say you still have symptoms when not treated.

Anyway, I have a IMO being written today that I will post which should be the end of my needed evidence.

Continuity of symptomatology may be
established if a claimant can demonstrate (1) that a
condition was "noted" during service; (2) evidence of post-
service continuity of the same symptomatology; and (3)
medical or, in certain circumstances, lay evidence of a nexus
between the present disability and the post-service
symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson,
12 Vet. App. at 253 (lay evidence of in-service incurrence
sufficient in some circumstances for purposes of establishing
service connection); 38 C.F.R. § 3.303(.

"Symptoms, not treatment, are the essence of any evidence of
continuity of symptomatology." Savage, 10 Vet. App. at 496
(citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).

Hopefully the IMO conforms to the criteria for IMOs I posted here under IMO topic.
Sounds like your NOD was strong and/or you filed for reconsideration.

Good advise- they told my former vet rep he didnt have HBP (due to DMII AO) because he took HBP meds.
They use faulty logic to see if we allow them to get away with it.

Greetings all,

News from the front... The submission of new evidence has been processed and my claim was awarded.

Date submitted: Jan 14, 2009
Date Awarded May 19, 2009

Thank you for all your help and guidance. Your help probably shaved a year off the process.

Phoenix,

CONGRATS!!! Did they consider it a Reconsideration with new evidence? I am going through that right now. (I, too, am prior USAF with 40% disability). I retired Nov 08, received my award mid-March and just submtted a Reconsideration with new evidence 14 April.

Congratulations on your award! What is your rating now? I hope mine has a result such as yours!

Congrats!!!!

WOW Phoenix this is GREAT news!

I am curious too- NOD or Recon Request-

A strong NOD with additional probative evidence can turn a decision around as well as a strong Reconsideration Request-

An IMO-while they can be very costly-can recover their own cost with a few VA comp checks that a vet would never get without the IMO.

This is fabulous news.

Phoenix,

Are you there...

I am now rated at 70%. The rating decision states, "You filed a reopened claim on January 14, 2009. Based on a review of the evidence listed below, we have made the following decisions on your claim."

Under Evidence,
It states "-Review of rating decision and evidence delineated in decision dated 12/9/08"

My guess is that new evidence triggered a review, but you can see from my letter at the beginning of the thread, I had good supporting evidence that was showed my medical records were ignored during my initial decision.

The copies of my service records clearly showed the diagnosis while on active duty. The IMO was rather cheap for me. I told my medical provider that if she didn't write a letter, I would be forced to seek care at the VA hospital and she would lose my business. I showed her my evidence that supported my claim, was nice about it and she agreed to write the letter.

Sorry I haven't been around much, Job hunting and all. The Sacramento area sucks for job hunting.

"My guess is that new evidence triggered a review, but you can see from my letter at the beginning of the thread, I had good supporting evidence that was showed my medical records were ignored during my initial decision"


Yippee!!!!! the key to success-
good supporting evidence as well as evidence they ignored initially-

they get away with lousy decisions when vets dont take the time to read and re-read their decisions to find the errors they made.

At 70% (I forget if I asked this before-sorry )
did they consider you for TDIU?

If you are not working then 70% is the magic percentage for IU.

Nope I am not working and no, I don't believe I was considered for IU. *ponders tossing more rocks in the VA pool*