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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 14135
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I just received a denial of my claim sleep apnea. 26 years

Customer Question

I just received a denial of my claim for obstructive sleep apnea. 26 years of service during my last four I came down with severe fibromyalgia, IBS, depression - it eventually was the reason I decided to retire in 2011. From 2008-2011 in my medical records there are 11 different instances of me complaining of a sleep disorder and yet no doctor, including 4 rheumatologists ever thought to do a sleep study (and I had no idea what sleep apnea is). Three months after retiring, I tried to get a referral for a sleep study but was denied several times. I have the proof of a screen print-out from Army Health net that they had mistakenly left me as Active Duty Reserve and all my referral went to ***** *****, who then denied me as I was retired. Crazy but even after fixing it in DEERS the system still pulls me down as AD. Anyway, finally got a sleep apnea test in 2014 and I have obstructive sleep apnea and have been on a CPAP for a year and a half. I have numerously literature on fibromyalgia and its overlap with male patients and sleep apnea is 61%. That fact alone seems to make it more likely than not that I had sleep apnea on AD. My weight in 2012 when first trying to get a referral for OSA was actually a couple pounds less than when on active duty - so I didn't ballon up and get a fat throat. The VA's reviewer stated that I had insomnia and that there were no symptoms of sleep apnea and therefore no test was done. It seems that the VA has been exceptionally arbitrary in applying reasonable doubt as the words sleep disorder, and difficulty maintaing sleep abound in my records, but never "insomnia". My logic says the VA is irrationally punishing me for not knowing of sleep apnea and asking for the test myself. Is a nexus letter (which will be darn hard to get as my PCM retired last month) the only way to beat this illogical rating system?
Submitted: 1 year ago.
Category: Military Law
Customer: replied 1 year ago.
In my claim, I did not have the screen print out of the AD still on the Army HealthNet but I explained carefully what happened with my TRICARE referrals - how they would get me an appointment at ***** ***** and then I would be subsequently denied. I coincidentally got a print-out of the screen shot of the DEERS-Army Healthnet error last week when trying to get a physical therapy referral for my fibromyalgia. Everything else was provided in written form with footnotes, etc.
Customer: replied 1 year ago.
Also gave the VA a historical run-down of my weight - which was about 205-207 during 2010-2012. My weight standard for the Army was 214 and I am still very muscular so while my BMI is between 25-27 I actually look thin. Bot***** *****ne is that I was a PT stud my whole career and didn't get fat at the end and get sleep apnea.
Customer: replied 1 year ago.
Another fact that I didn't provide the VA was that my wife never told me that I snored until I asked her (in Dec 2011) two months after I retired and discovered from a friend what sleep apnea was. She told me that I had been snoring for several years and that she just didn't want to have a nother point of tension (with all my illnesses and retirement, move, etc.) I could have sent a sworn statement from her, but thought the VA would disregard as she is my spouse and stands to benefit from any claim. After the holidays (Jan 2012) was when I got my first of three denied referrals for a sleep study.
Customer: replied 1 year ago.
Another curious fact in this case is that I was diagnosed with Restless Legs Syndrome RLS while on active duty. The VA rated it as service-connected but 0% on my initial retirement rating. Although I mentioned that in addition to sleep apnea, I had a more complex sleep disorder including the RLS - the VA makes no mention of RLS in the denial. (I know that RLS has no code in the CFR and it usually just wrapped under a larger sleep disorder. In my case the VA just ignored it when disposing of the sleep apnea claim.) RLS has a higher precedence in people with sleep apnea (and fibromyalgia) but I couldn't find any well-run trials to use as supporting evidence of RLS for OSA. Regardless, the VA admits I was diagnosed with a sleep disorder and RLS - but has refused to give any % saying that sleep apnea less likely than not service-connected. Seems like Catch 22 - we know you have a sleep disorder (they are calling it insomnia) and RLS - but we are paying you for them or sleep apnea.
Customer: replied 1 year ago.
On the last sentence I meant but we are NOT paying you for them or sleep apnea.
Expert:  P. Simmons replied 1 year ago.

My name is***** have over 16 years experience in the law. Should you like to chat on the phone I am happy to for a nominal cost. Let me know at any time during our question and answer session if you are interested I am happy to give you more details.

You have a lot going on....I am a VSO (veterans services officer) with experience in filing claims. Would it help to chat on the phone about your case?

Customer: replied 1 year ago.
It would depend on the nominal fee. I am trying to keep this a inexpensive as possible as my financial means are stretched right now. I wanted to get what advice would be best for my NOD for sleep apnea. I could easily include a sworn statement from my wife stating that I snored for several years prior to retirement and possibly get a "nexus" letter from my PCM; he was my PCM from Jan 12 - Apr 15 and was the one who saw me go through the hassle of trying to get a sleep study because of the AD versus Retired screw-up. I'd prefer to keep our conversation written for now... As part of what I signed up for Just Answer seemed to include an additional month's worth of services. This case is just the most pressing; I have two other cases with the VA where it seems they are just stalling.
Customer: replied 1 year ago.
Declining the phone call - would just like to see the best things to include in my NOD, how to organize it, etc as it seems to me that the VA is just dead wrong about the evidence; it seems to me that it is almost certain I had sleep apnea on active duty, given my 11 documented complaints of a sleep disorder (for which I received pain killers, Ambien and then Lunesta, but no sleep study) and my early 2009 diagnosed fibromyalgia. Again 61% of males with fibromyalgia have sleep apnea. All those facts seem to me like some overwhelming circumstantial evidence.
Expert:  P. Simmons replied 1 year ago.


I am going to opt out of the are asking for a lot of information...I had offered the phone call since I would not mind speaking on the phone...but not willing to try and type up all the information required to address your issues.

If someone else is willing to they will provide an answer.

I wish you the best of luck

Customer: replied 1 year ago.
I'd like a total refund of all my money and dropped from any monthly fees this site may have charged or intend to charge.

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