Jump to content


Photo
- - - - -

Sleep Apnea Disability Denial


This topic has been archived. This means that you cannot reply to this topic.
10 replies to this topic

#1 xman52

xman52

    E-2 Recruit

  • Seaman
  • Pip
  • 2 posts

Posted 21 May 2008 - 05:17 PM

:lol: I recently retired from the USA after 21 years. I was diagnosed with Servere Sleep Apnea (74 occurances an hour) four years ago and perscriped a CPAP. I have been using it religiously since. I was suprised to get my VA disability rating of 0% saying the Apnea was service connected, but because it didn't effect my ability to work a full time job, I was denied. I was shocked! Based on other friends I know, I was expecting 50%. What should I do now? intend to appeal, but don't know if I should contact the DAV for support. The majority of the issues I read about talk to proving the diagnosis and service connection. I have both documented. Can anyone help point me in the right direction? Thanks!

#2 Bill (USAF Retired)

Bill (USAF Retired)

    E-4 Petty Officer 3rd Class

  • Second Class Petty Officers
  • PipPipPipPip
  • 85 posts

Posted 21 May 2008 - 05:36 PM

:lol: I recently retired from the USA after 21 years. I was diagnosed with Servere Sleep Apnea (74 occurances an hour) four years ago and perscriped a CPAP. I have been using it religiously since. I was suprised to get my VA disability rating of 0% saying the Apnea was service connected, but because it didn't effect my ability to work a full time job, I was denied. I was shocked! Based on other friends I know, I was expecting 50%. What should I do now? intend to appeal, but don't know if I should contact the DAV for support. The majority of the issues I read about talk to proving the diagnosis and service connection. I have both documented. Can anyone help point me in the right direction? Thanks!



Because you're the guy who will bear the consequences if your Board of Veterans' Appeals (BVA) case fails, my strong advice to you is to research this thoroughly on your own BEFORE sitting down with a DAV or other service organization representative.

Read the VASRD requirements for sleep apnea and its various ratings.
Read the BVA decisions concerning
1. Award of service connection for sleep apnea, and
2. Award of the 50% rating you seek.

Know the standards like you know any of the important stuff from your MOS.

Why? You can't evaluate the performance of your "subordinate" (the rep) unless you know what he's supposed to know.

PM me if you want to go over stuff...I am a retired USAF paralegal. I can't give you legal advice, but I can give you some insights.

#3 Jim MAC

Jim MAC

    E-6 Petty Officer 1st Class

  • Chief Petty Officers
  • PipPipPipPipPipPip
  • 342 posts

Posted 21 May 2008 - 06:40 PM

Because you're the guy who will bear the consequences if your Board of Veterans' Appeals (BVA) case fails, my strong advice to you is to research this thoroughly on your own BEFORE sitting down with a DAV or other service organization representative.

Read the VASRD requirements for sleep apnea and its various ratings.
Read the BVA decisions concerning
1. Award of service connection for sleep apnea, and
2. Award of the 50% rating you seek.

Know the standards like you know any of the important stuff from your MOS.

Why? You can't evaluate the performance of your "subordinate" (the rep) unless you know what he's supposed to know.

PM me if you want to go over stuff...I am a retired USAF paralegal. I can't give you legal advice, but I can give you some insights.

NOD that TODAY retired AF also get 50% for sleep apena with CPAP machine

Jim

#4 stillhere

stillhere

    E-8 Senior Chief Petty Officer

  • Senior Chief Petty Officer
  • PipPipPipPipPipPipPipPip
  • 1347 posts

Posted 21 May 2008 - 07:00 PM

xman what did the VA say in the decision letter. They should have stated why it was denied. That is the best place to start. Post it here the decision and why and others will come along and help, that has to be a big mistake.

stillhere

#5 dwilli12

dwilli12

    E-3 Seaman

  • Seaman
  • PipPipPip
  • 25 posts

Posted 21 May 2008 - 08:47 PM

xman52,

It sure sounds to me like you have a valid claim......here's some advice based on my experience finally getting 50% SC for SA.

Get "buddy letters" from co-workers and anyone else who witnessed your daytime sleepiness and night time snoring AND get a strong letter from your pulmonolgist concerning your current condition.

This dr. letter should reference the state of your condition (how long did it take to get this bad?). It should also specifically state the drs. opinion is based on his examination of you, your sleep study results, a careful review of your SMR, your statements about your symptoms since they began, and the official statements (buddy letters) of your co-workers, spouse, etc. If I understand correctly, you were diagnosed while on AD, so that should help...a lot!

My SMR was completely silent about any sleep issues whatsoever. I did have SC for GERD, since it was in the SMR. I was not diagnosed with SA until Dec 04, after retiring from the AF in Aug 03. So it was an uphill battle for me, but is achievable.....at least it was for my AMVETS VSO at St Pete RO.

We were denied SC for SA three times! We never appealed, only requesting "re-open my claim" with a new IMO letter and/or sleep study, and "reconsideration" at the local VARO. My pulmonologist wrote three IMO letters, each more specific and stronger than the last. He was not familiar with the VA process at all, and really got annoyed at my request for the third letter.....but he wrote it, and did it well.

After that third letter, My VSO was finally able to get the VARO review person to request a C&P exam at the St Pete VAMC. I went to that exam fully prepared to talk about my sleep apnea problems for the last decade. I even brought the CPAP! The examiner was quick, friendly, and to the point. It must have gone well, because less than two weeks later, my VSO calls with the good news.

I also included in my mailings to my VSO four printouts of BVA decisions that included approvals of SC for SA that had been denied the VARO level. All of them dealt with the fact that the vet had SA for years, but it was not diagnosed while on active duty, mostly because the AD docs didn't know what the hell it was, and vets don't either. I don't have document numbers of these decisions handy, but I'll look them up later and send them to you. Also, you can look them up here : BVA Decisions Try searching for "apnea is granted".

Last thing, I haven't received my latest decision in the mail yet. Once I do, I can read it to see what their reasoning was to grant approval. I'll let you know what I find out. Good Luck, and remember, every time one of us wins, it should make it easier for the next vet. So don't give up if you know you have a valid claim.

dwilli12

#6 Ricky

Ricky

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 2116 posts

Posted 21 May 2008 - 11:29 PM

:lol: I recently retired from the USA after 21 years. I was diagnosed with Servere Sleep Apnea (74 occurances an hour) four years ago and perscriped a CPAP. I have been using it religiously since. I was suprised to get my VA disability rating of 0% saying the Apnea was service connected, but because it didn't effect my ability to work a full time job, I was denied. I was shocked! Based on other friends I know, I was expecting 50%. What should I do now? intend to appeal, but don't know if I should contact the DAV for support. The majority of the issues I read about talk to proving the diagnosis and service connection. I have both documented. Can anyone help point me in the right direction? Thanks!


Ok just a couple or three questions:

1.First you state that it was SC'ed at 0 percent and service connected - they you state that it was denied. I understand that you are upset but you must provide the facts as provided in the rating decision. Was it service connected at zero percent or was it denied? Can you scan the appropriate portion (the reason and basis) of the rating decision so we can see what is going on?

2. You provided that you recently retired. When did you retire and how long was it before you were diagnosised and submitted the claim?

If the rating decision only provided you with a zero percent rating based upon the fact that you can still perform work then it is wrong for this type of disability. If you can post it then you will allow us to see the route they took to deny or improperly rate the claim which will allow us to assist you. Thanks

#7 xman52

xman52

    E-2 Recruit

  • Seaman
  • Pip
  • 2 posts

Posted 22 May 2008 - 06:40 AM

xman what did the VA say in the decision letter. They should have stated why it was denied. That is the best place to start. Post it here the decision and why and others will come along and help, that has to be a big mistake.

stillhere


The decision said
" Service connection for sleep apnea has been established as directly related to military service.A noncompensable evaluation is assigned from September 1, 2007. A noncompensable evaluation is assigned for an asymptomatic condition. A higher evaluation of 30 percent is not warranted unless there is persistent day-time hypersomnolence.

The evidence of record indicates that you underwent a sleep study in service at Fort Leavenworth, Kansas in 2003. Diagnosis was sleep apnea. Current findings show that you use a CPAP machine. You have no problems with breathing and you have no signs of of hypersomnolence (need excessive amounts of sleep). The examiner states that your sleep apnea does not affect your occumaption or activities of daily living.

The evidence of record shows that you were initially diagnosed with sleep apnea in service, service connection is granted effective the date after your discharge from service.

This condition is rated at 0 percent disabling because evidence does not show any problems with breathing or any effect on your occupation or activities of daily living. A high evelauation of 30 percent of 30 percent would be warrented if persistent day-time hypersomnolence were shown"

The bottom line is I can's sleep without my CPAP. My problem is probally worse than when diagnosed with 74 instances an hour... What should I do?

#8 71M10

71M10

    E-8 Senior Chief Petty Officer

  • Senior Chief Petty Officer
  • PipPipPipPipPipPipPipPip
  • 1215 posts

Posted 22 May 2008 - 08:04 AM

The decision said
" Service connection for sleep apnea has been established as directly related to military service.A noncompensable evaluation is assigned from September 1, 2007. A noncompensable evaluation is assigned for an asymptomatic condition. A higher evaluation of 30 percent is not warranted unless there is persistent day-time hypersomnolence.

The evidence of record indicates that you underwent a sleep study in service at Fort Leavenworth, Kansas in 2003. Diagnosis was sleep apnea. Current findings show that you use a CPAP machine. You have no problems with breathing and you have no signs of of hypersomnolence (need excessive amounts of sleep). The examiner states that your sleep apnea does not affect your occumaption or activities of daily living.

The evidence of record shows that you were initially diagnosed with sleep apnea in service, service connection is granted effective the date after your discharge from service.

This condition is rated at 0 percent disabling because evidence does not show any problems with breathing or any effect on your occupation or activities of daily living. A high evelauation of 30 percent of 30 percent would be warrented if persistent day-time hypersomnolence were shown"

The bottom line is I can's sleep without my CPAP. My problem is probally worse than when diagnosed with 74 instances an hour... What should I do?


This type of CRAP from the VA is really troubling! I have inserted the VASRD section on Sleep Apnea. File A NOD (notice of disagreement) which can be a simple letter stating you disagree with the decision and state why. In your why, indicate that the VASRD clearly states: Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine is a 50% rating. I would also include a sentence or two about how this disrupts your sleep and effects your relationships (snuggling up to a person wearing a Darth Vader mask). Point out what things you can no longer do because of the required treatment. for example, I can't backpack anymore (70 pound trolling battery is a bit much to heft in a pack).

6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy100Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine50Persistent day-time hypersomnolence30Asymptomatic but with documented sleep disorder breathing0
If this is your only problem with the rating it should be a slam dunk for you. The only thing that could complicate this further is if the medical diagnosis on your sleep apnea doesn't "require" your use of CPAP, but with 74 apnea's per hour I doubt that is the case.

I guess the worst thing is that this will delay things.

It kinda makes you wonder if some e-mail is floating around the VARO's about out of control sleep apnea claims..... :lol:

I know my sleep apnea is service related but unfortunately I don't have enough evidence to file for it. :-(

Best regards,

Tyler

#9 Berta

Berta

    HadIt.com Elder/SVR Radio Panelist

  • SVR
  • PipPipPipPipPipPipPipPipPipPip
  • 28063 posts

Posted 22 May 2008 - 08:43 AM

I think their decision is absurd.

I suggest you get the DAV to support a Request for Reconsideration of that decision.


This will not stop the NOD clock-if they do not address the Reconsideration Request as the year after the decision starts to end -make sure you file a formal NOD-

This BVA decision shows how wrong that decision is:
http://www.va.gov/ve...es1/0800540.txt
and supports what someone else said here.

It is almost like the VA is saying- if a vet loses their leg in combat from IED-and gets a prothesis for it- then the vet has a 'non compensable' disability.That sure would never fly-
Seems like they are trying to pull that BS with you.

The RO awarded a 50 percent rating for the veteran's sleep
apnea, effective December 13, 2005, because it found that
this was the date on which it became apparent that she needed
a CPAP machine, as evidenced by the date of the receipt for
the rental of a CPAP machine and the purchase of related
equipment. However, a 50 percent rating under DC 6847 does
not require that a CPAP machine be purchased or rented.
Rather, a 50 percent rating is warranted where the sleep
apnea "requires use of breathing assistance device such as
CPAP machine." A March 17, 2004 National Jewish Medical and
Research Center treatment note reflects that the veteran was
assessed with sleep apnea and daytime fatigue/fogginess, and
the plan/treatment indicated a sleep study with evaluation
and "CPAP fitting." As this is the first medical evidence
that reflected that a CPAP machine was required for the
veteran's sleep apnea, the veteran is entitled to a 50
percent rating as of that date. See 38 C.F.R. 3.400 &
3.400(o)(1) (2007) (for original claims and claims for
increase, the effective date is the date of receipt of the
claim or the date entitlement arose, whichever is later)."

#10 Ricky

Ricky

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 2116 posts

Posted 23 May 2008 - 01:51 AM

It does sound like they are playing a game with the claim. My sleep apnea claim was denied due to the fact that the doctor did not connect it to service. However, on the report that he wrote up he did say that my hypersomnia was affected by GERD, Allergies (both of which I am SC'd for) Chronic pain syndrome and nocturia (both of which I have claimed along withe the hypersomnia), I figure that 30% is better than nothing.



If this is the wording of the rating decision it sounds like a decision issued by the Montgomery VARO !!!!!!

The wording that you provided below says that you are service connected at 0 percent. Then in this post you said I figure that 30 percent is better than nothing. I am a little confused - are you receiving 0 or 30 percent (sorry but I get confused easily hahahahaha). At any rate the rating schedule demands a 50 percent rating for SA requiring the use of a CPAP. Does not matter about anything else. Therefore, this decision is totally flawed and needs to be changed. You could ask for a reconsideration (although a reconsideration normally requires submission of new evidence). Try it. If it does not work then submit a Notice of Disagreement. You will be successful in a 50 percent rating even if it has to go the the BVA level. I am sorry to see such a rating as this for this type of incompetence only clutters an already over burdened system and shows that the backlog problem is self imposed.

#11 huskerfanfl

huskerfanfl

    E-5 Petty Officer 2nd Class

  • Chief Petty Officers
  • PipPipPipPipPip
  • 287 posts

Posted 23 May 2008 - 06:45 AM

I deleted my previous message because it was confused with the original post. I apologize for causing any confusion or anything else I may have done inadvertently.