ShrekTheTank

I did Win my claim without an IMO. Mine is secondary to Burn pit exposure. I sent all of the evidence of sleep apnea and my own Lay statements along with the doctor's notes who I talked to at the VA about it. There are ways to win this, but I think mine were because of where I was and the exposure we had.

What are you trying to do? do you need Aid and Assistance? Or is he in need of more care? or are you trying for a higher rating?

I can't agree with this statement. Do I think if the only thing you can do is go to doctor appointments and that is it should have HB, it seems to be right? As for TDIU, there is no way everyone who receives this is HB. If we are following the conditions set for getting TDIU: To obtain TDIU, all of these conditions must be true: The veteran must have at least one service-connected disability that has been rated at 60% or greater disability; or two or more service-connected disabilities, provided that at least one is rated at 40% or greater disability and the combined disability rating is 70% or greater The veteran must not be able to hold down a steady job that supports them financially because of the service-connected disability (also known as substantially gainful employment) The veteran must not have been dishonorably discharged Veterans who have paying jobs may still be able to qualify for a TDIU rating. Marginal employment, such as odd jobs, do not count as substantially gainful employment. The income earned must be below the federal poverty level. The VA does allow for some work to be able to be performed. This would not make you HB.

From what I understand is you have to Apply for housebound? As this does jump over the 100% plus 60% P&T. They would not just automatically say since you are TDIU that you are housebound, but that you can't work. A veteran is considered to be housebound when: Veteran is substantially confined to his/her dwelling as a direct result of service-connected disabilities It is reasonably certain that the disability will persist throughout his/her lifetime

When you got the 100% P&T they should have already looked at all of you %s to see if you were eligble. I think you just need to send in to ask them to look at it. I am sure someone here can give you a direct path, but I am sure there is a way when applying for benefits.

It does happen all the time. It depends on what the secondary condition is and how bad it is. The VA does not say well since you have 20% for said condition, then we are only going to give you 30% of the 50% that the rating says you should get. If you are connected to a Secondary condtion the Va rates it as a seperate condition as long as it does not pyramid. So it will have it's own rating that has nothing to do with what it is secondary too.

So, I work in construction, and I have to say what is a repair loan if you can't get it to REPAIR your house? Since they are requiring these to be fixed for the loan there is not a lot you can do but fix them, but you can ask them to put them into the loan. Stairs and Siding are not cosmetic. Cosmetic is painting or plants. Stairs are the way you get into the house. Siding protects the house. I would suggest giving them a call and see if it can be added into the loan.

I agree with both of you in that sometimes you do not need and IMO and other times you do need an IMO. I have won claims without an IMO, but I still at some point had a doctor write to my condition about how it affected me in a normal office visit. Did I need and IMO for this? No, I did not and the rater took what was said in my records and applied them as they should have. Have I needed an IMO to get a claim? Yes I sure did. I had a bad C&P exam for PTSD. The rater gave me 10% when clearly it was much worse than that. I am still fighting this claim from 2011 but have gotten some progress off of it. I am now at 50% but they got me by moving my EED to last year. I had to take it to the CAVC to fight this and they did talk about my IMO and it did help my case as they talked about all of my issues and got me closer! So, are they NEEDED, yes and no.? Do you have the medical evidence you need to win? Did you get a bad C&P? Do you have a doctor who already gave you what you need in your records and have not looked yet? This is very complex and there are times you will need one and other times you will not. This is my opinion, and it does suck when the VA does not just do the right thing.

GbArmy and Broncovet are correct, you are going to need a medical doctor to give you a link together. An IMO is expensive, unless you have a doctor at the VA who will write you one. I did get lucky with this twice at my VA and they wrote it in my chart because I asked if there was link. Granted I got very lucky as they are normally told to not do this. Most of the doctors at my VA rotate in, so they are not employees of the VA per say. You could try this, but the most effective way is to pay for and IMO. It won my PTSD claim which the VA is still trying to move my EED date on me, so I won't get backpay for it. Or when did you serve? Are you a Gluf War Ear Vet? If so, this falls under the presumptive conditions and would not be secondary. Keep fighting and you will get there!

The Examiner may have had what they already needed if they did read what was sent to them. I would not take it as a bad thing, but now it is the waiting game. If he could already tell there was no need for ROM then there was no point. Just wait and see what happens, but so far it sounds good.

It does not matter what the condition is. You are 70+ and you are unemployed. I think you need to apply and put in a hardship. I am not the pro here at this, but if you already are SC, I don't see why you can't file. Also, you can start you claim today, and you have 1 year to file. If you wait till after the first, you will miss the back pay of next month.

Congrats

You have to be at or below 30% disabled.

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).

She needs to file first. She needs a Nexus/Lay statements to show why her Service connected PTSD is affecting the sleep apnea. I had to fight mine to the BVA and I made a post a while back about the letter I had sent that won my case for me. I will try to find it and post it back here.

I missed them, they should be good now Also you can IM us if we miss them

There is none, but sometimes you have to push when they are sitting on their hands!

I did the WH and got some response, but what got mine of the finish line was contacting all of the congressmen her in Nebraska. One of the Aids were able to get it done within about 30 days. They will ask you to fill out a release so they can check on it on your behalf. Remember the sqeaky wheel gets greased.

you are and you should try to do it yourself first!

Also if they did a backpay did you get a bump if they applied prior to the backpay? If not you might need an audit.

I know my math can be off from time to time, but with that effective date, it is only 18 months of back pay. Also @brokensoldier244th is correct in each year the pay changes. Also it depends on when each of the percentages changed.

So I also use a Lay statement to get this point accross. It did work!

Glad to have you back Buck!

I am P&T for Dercums disease. My doctor in my notes put down my condtion will never improve and will only ever get worse. I am at 60% for this conditon, and when I hit 100% overall they put on the P&T.

I think those are more of a guideline than a rule. The second sentence is what they used in my decision. I also not have the lose of use of a body part, but I am 100% P&T as my conditions will never improve and will only ever get worse.