ShrekTheTank

Always tell them you start to feel pain. Don't push through the pain. Now is not the time to suck it up! Be honest with them. For whatever reason we (Veterans) feel the need to be tough. This is not needed. Atleast not durring a C&P. Tell them all the issues you are having. This will be chance you get to tell them how bad it is. Tell them your worst day. Tell them how often you have isssues. Write it out if you need to and give them a copy.

I am confused on how youa re 100% P&T and still in the reserves. I tried to go back in and they told me if I was over 30% I could not do it. I could be totally wrong, but I was told this about 10 years ago. Could have been a scare tactic. '

Oh wow, this sounds like some shady business. Seems they want the easy way out and not put in th work to get this done.

I did not file for mine until almost 10 years after I got out. I would say it is pretty good. If they are in your medical records, it makes it easier. Even if it is not, there are a lot of presumtive conditions. Depedning on where you served.

I checked my Appeal today and saw this Because the judge identified an error, a reviewer at the Veterans Benefits Administration will correct the error based on the judge’s instructions. You’ll receive a new decision in the mail. If needed, the reviewer may contact you to ask for more evidence or to schedule a new medical exam. I have never seen this on one of mine. I am hoping this is good news. Thoughts?

I would say to call your doctor and have them advocate for you and apply again. Do a hardship application and get it moving. I would ask my Partner to help with this as I think they can move much faster. These issues do not get better, so call your VSO, RSO, and anyone else you can think of for help. The sqeaky wheel will get greased!

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).

If I would have listened to this I would still be at 30%. I really don't like when they tell stories like this, it happened to one person who was probably not telling the truth, so now they do this to scare us I think. I was told by a guy at the DAV to not push anymore, and that the conditions I was going after would never be awarded. I started with 2 condtions rated and I now have 12 or 13. I have been to the CAVC twice and the BVA 4 times. I have won everyone of the ones i pushed for and felt were service connected and they agreed. I now get full benefits and my family does also, and it makes it a bit easier to live each day. It really sucks to live with these conditions, and it would suck more with more stress if we didn't get something. My advice and this is just my opinion is to fight them as far as you need too, as no one else will do it for you. Stand up to them and use the veterans here to help you. Each one of us has a story of how we won our cases against the VA. Keep pushing and never give up!

Welcome, To answer your question, they should do it automatically. The issue is they don't always do it. So you might need to ask for a review to get it to trigger. I am currently at the BVA with a review, and we will see how it pans out. It does not hurt to as the regional office or call Peggy.

My most resent was at the BVA for a year. The one prior to that was there for 4 years. This was my 2nd time at the BVA for the same issue. So it is anyones guess. Also depends on if it is a hardship.

Yes take them in again!

The VA will do their own exams. There is nothing to really do about them, but go. I would take your piror exams with you to the C&P and from my experience will use them and upload them again. Mine used them in the decision and it made it go faster. I am not saying it always turns out the best, but I have won 90% of them after I started doing this.

congrats! This is great info.

that is amazing! thank you for letting us know! Keep us posted.

I like having choices. For me and where I currently live the VA medical is amazing. But this is my experience and i know other VA loactions that are horrible. I think we all need choices as there is no perfect model to take care of every person. I know we are from different generations, and healthcare has changed so much over the years. We all get things in our head about an experience we had 30 years ago. We don't want that to happen again, so we choose to never go down that road again. Also every medical care loaction will have it's own issues. I had a horrible opperation, where I was sent home without even knowing where I was yet and the meds had not worn off. The VA here went above and beyond as they had the nurse who sent me home. I had a galblader surgery and went in at 10 am and was home by 1 pm. Just so you know, this is not good. I do not remember getting dressed, and I had blips of going to the car. I remember telling my wife i an going to throw up. There was a Panera bag from her begal that morning, I grab it and tossed my cookies into it. My wife was worried out of her mind as she knew it was not good to throw up after surgery. I made it home and down a flight of stairs, that my wife said she thought I was going to fall the whole time. After I got home I threw up 4 more times that night. My wife called the VA and told them what had happened, and I had everyone from the hospital calling me to see what had happened. The main doctor over the VA hospitial asked my wife if he could come and check on me at my home. He came by and checked on me to and said he thought I was ok at this point. They then called every few hours of the next 4-5 days to make sure. I know they messed up because of a bad nurse, but in my mind they did the right thing by doing something abou it. I have also had over 30 surgeries with no problems. If this would have gone the other way, I would have been looking for another place to go.