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First Class Petty Officer
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JKWilliamsSr last won the day on February 15 2019

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About JKWilliamsSr

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    E-5 Petty Officer 2nd Class

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  1. if you can get a DBQ filled out that will satisfy the requirement IMO. Only a medical professional can sign a DBQ (I believe) and that will satisfy the requirement.
  2. This is why there is a need for the BVA and CAVC because the VA tends to make their own rules. However I will say this. If the VA cites the M21-1 in a decision for denial that IMO is immediate grounds for a CUE. When a rater makes a decision they have to follow all applicable laws. I have never heard of a decision where the M21-1 was cited. That does not mean they will not deny things. They will use the wording in the M21-1 as their interpretation of the law but in the end will have it overturned and case law to establish medical necessity.
  3. In the end this is going to be overturned via the CAVC but that is a few years down the road and it sucks for vets that will now have to go through the VA crap. The biggest way to defeat this hidden rule is the DBQ. Question 2c states "Does the Veteran Require the use of a breathing assistance device such as a continous positive airway pressure (CPAP) Machine? It is a simple yes or no question. Since the Sleep Apnea DBQ is simplistic in nature I think many will be able to get their doctor to fill it out and check the necessary box. The Sleep Apnea DBQ does not have an area to provide a nexus for service connection. It is only about the diagnosis and treatment itself. If the DBQ is filled out by anyone other than a Pulmonologist and they check "No" on question 2c on appeal you need to make sure you challenge the qualifications of the C&P examiner. The VA loves to use PA's and NP's to do C&P exams and unless they have specialized training the cannot make that medical determination and not expect to be questioned about their qualifications to make such a determination. 38,000 people die a year from heart disease with sleep apnea as a complicating factor according to the American Sleep Apnea Association. I do not think there is a Pulmonologist currently practicing that will say Obstructive Sleep Apnea "Does Not" require a CPAP machine. That is a fast track to malpractice IMO.
  4. Normally it would be assumed that using a CPAP is medically necessary. The reason for this is you can only get one via a prescription. I have Asthma and Sleep Apnea. I see a Pulmonologist for both of them for treatment. A pulmonologist is a specialist in conditions that affect the lung and respiratory tract and since Sleep Apnea is considered an upper respiratory condition you do not not have to see someone that specializes in sleep conditions only. It does not matter what the M21-1 says since it is not law. The law that pertains to sleep apnea is 38 CFR 4.97 under diagnostic code 6847 and it does not have a requirement of "medical necessary" it only says "requires use of breathing assistance device such as continuous airway pressure (CPAP) machine". A CPAP machine is used to treated the symptoms of Sleep Apnea and VA disability compensation is based on symptoms.
  5. If you have a DBQ and/or Nexus letter from a qualified medical professional the VA cannot excluded it without a proper explanation. This explanation must be based off of a valid medical opinion.
  6. Citations are normally issued by the BVA. They are not precedent setting decisions. Only 3 judge CAVC decisions are precedent setting.
  7. I am trying to decide if I should call the white house line of file an IRIS claim myself. I am leaning towards filing the IRIS claim because my understanding is that is what happens when you call the white house line anyway. So here are where my claims stand. 1. In September my supplemental for Sleep Apnea and 1 other was closed. I still have not received a letter or any other type of notification about this other than it is what shows on va.gov. I am certain they are required to send me notification and by not doing so is a clear violation of 38 CFR 3.103 2. The remaining claims on that supplemental claim are still pending. I have called them twice already on this for the status. This is the exam where I had the bad C&P exam but there still should have been some kind of movement. I had the C&P exam on November 5th and 30 days later I called to request the status and was told they were waiting for exam results. Called them out on that and they said it was because of backlog. I called a couple weeks later and they were not gave me any additional information. Just stated it was still pending. I personally believe this exam should be in the hands of a rater because it is not an appeal but reopened claims with new evidence. Unlike new claims or increases I cannot request a decision because I do not have additional evidence like you can on ebenefits. 3. I also have an HLR pending for denials I received an October. Right now the status is "A senior rater is taking a new look at your case". It has been sitting in that phase for the last 3 weeks and since no evidence can be submitted it should not take a rater this long to be looking at this. I could be wrong but I have seen way too many HLR's being completed within a week or so of a senior rater looking at it. Maybe it is a good sign maybe not. Here is what I think is happening. I have several different types of claims going and I think it is just being swept away. The last time I called I asked about both my HLR and Supplemental claim and the person I spoke to was clueless and could not give me any information because in my opinion they did not know what the hell they were doing. I think with an IRIS complaint I can detail all of my concerns and have it listed where it cannot be ignored. Sure it may not make a difference but it will be on record and can be used in my appeal.
  8. Looking at the letter I would say it is identical to what they did to me. It appears they are listing the evidence they claim to have considered but do not mention said evidence in the actual decision. It is lazy rating at it's best. The decision letter cite's the VA examiner but does not cite Dr. Anaise which is a clear violation (probably not the best term to use) Couple things I see wrong right off the top of my head. They cited 38 CFR 3.303 but clearly did not properly apply it. This regulation has 4 parts in it general, chronicity and continuity, preservice disabilities noted in service and postservice initial diagnosis of disease. Since they did not specify the actual application then the logical assumption they applied the entire thing. They did this exact same thing to me and I called it out in my HLR and pretty much demanded they show how they actually applied it. I am not going to let the just say they followed a law in a denial without showing their rationale. My HLR is still pending. The cited 38 CFR 3.304 and they clearly screwed up here by stating they applied this. In the decision they stated that your left knee tendinitis is not related to your right knee tendinitis. So to me it was clearly filed as secondary condition but they cited a law that applies to DIRECT service connection. The law they were supposed to apply in connection to this was 38 CFR 3.310 which is for "disabilities that are proximately due to, or aggravated by, service connected disability or disease" Basically a cookie cutter denial from a lazy rater.
  9. A couple months back before I received my decision I started preparing for the appeal I knew I would be filing. That is how little faith I had in the VA caring about we the veteran. One of the things I did is I went through the entire M21-1 and documented every CAVC precedent case that the VA cited. I did this because I wanted to see what the rater was seeing. I could not understand for the life of me why so many obviously bad decisions were being handed down. I think the bottom line is that the wrong type of people are hired as raters. I think raters should have some kind of legal background. They do not need to be lawyers but I think paralegals would be a good idea. There have been more than 3500 precedent setting decisions from the CAVC since 1989. Now we need to concede that all of them are not favorable to the veteran but I have learned that in a lot of cases even though the veteran lost a case it some rules were established that assisted other veterans. The document I created has about 200 or so decisions cited in the M21-1. Considering the fact that there are more than 3500 precedent cases out there I think it is safe to assume the VA purposely left out decisions that would make it almost impossible to deny veteran claims. Case in point. I know of 14 precedent setting decisions that state the VA cannot ignore or give no weight to outside doctors without providing valid medical reasons as to why. Most of these decision are not cited by the M21. It is important that we do our due diligence to make sure we do not get screwed. I think the M21-1 is incomplete because there is too much information we veterans are finding on our own to get the benefits we deserve M21-1 Precedent setting decisions .docx
  10. If your claim is approved the effective date will more than likely be your ITF date.
  11. When I submitted the form I did not bother to check that I wanted a phone call. At the time I did not and to be honest still do not want the call but after reading some of you guys post I truly see the logic behind it. If my HLR is denied I am getting an attorney. I have already reached out to Hill & Ponton and once I get my letters I will hire them.
  12. Probably beating a dead horse with this but I will make my standard statement. I think most raters are just flat lazy and don't bother to actually review claims properly. They go by what the C&P examiner says and it does not matter what any other evidence says. In my opinion the raters only care about the number of claims processed. They do not concern themselves with accuracy because they know the BVA will fix the problem. Only problem is that this takes and really hurts the veteran. As it pertains to the medical evidence. No rater can ignore or give outside medical little weight without doing so with a valid medical opinion. This is why so many get overturned at the BVA level. There is a ton of case law on this. Willis v. Derwinski Colvin v. Derwinksi Fletcher v. Derwinski Moore v. Derwinksi Lowe v. Derwinksi Magusin v. Derwinski Guerrieri v. Brown Ashley v. Brown Doran v. Brown Rollings v. Brown Patton v. West Jones v. Principi Coburn v. Nicholson Shipwash v. Brown
  13. In my case I am pretty sure that the rater did not ask their C&P Examiner for clarification and that is where they lose. For one I think it is pretty stupid to request a Nurse Practitioner to clarify an opinion that was provided from a Board Certified MD. They definitely did not reach out to my Dr. On top of that my diabetes claim was denied without a C&P exam. The rater took the evidence I submitted and made their own opinion.
  14. I understand the concept of taking the call and it does make sense. My problem is the trust factor and it is very difficult for me to get past that. Taking a phone call may give me more anxiety than it is worth and could cause issues with the call it self. If I did not provide full details on how I felt the rater did not follow the necessary laws I would have opted for the call. I gave enough details that if the senior rater actually read it a phone call would not be needed. The 2 biggest concerns with my decision are: 1. Most of the medical evidence I submitted was ignored without explanation 2. All lay evidence was ignore as well without explanation. This all boils down to a rater taking my claim and not looking at all the evidence. While I can't prove it I believe the rater saw that my IME was from Dr. Ellis and immediately decided to reject it. The rater only cited his IME in denials but in the end the rater made a critical mistake. The rater put this statement in my denial for diabetes. "So Although the statement of Dr. Ellis is credible given the medical credentials held, his statement is found to carry little weight as there is no medical document used in order to provide his opinion" By saying "The statement of Dr. Ellis is credible given the medical credentials held" the rater is stating that Dr. Ellis is credible and this credibility has to now apply throughout the entire IME report. I submitted Dr. Ellis Curriculum Vitae when I filed my claim and his credentials is clear. One of the credentials he holds is that of a "Diplomate, American Board of Disability Analysts" which means he is a board certified doctor in disability analysts. He is also board certified in Environmental Medicine and Family Medicine. Yet the rater gave more weight to a nurse practitioner. Oh....and there was plenty of medical evidence to support the opinion by Dr. Ellis the rater just ignore it. On top of that. The claim for disability cannot be denied even if it was based on an opinion (Colburn v. Nicholson). The rater still has to provide a medical basis for denial.
  15. A lot depends on how the senior rater views my documents. I did not submit any new evidence. I only pointed out what laws the rater failed to follow. I have heard of people doing this and the HLR being closed because it was viewed as new evidence. Toss of the coin to be honest.
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