pawmbi

The VA simply does not know the law as it relates to obesity and sleep apnea. I had a client denied for the same reason, VA pointed to his obesity/weight gain as the cause of his sleep apnea and denied him. I provided the attached memo on a supplemental and it was overturned. Now the caveat is he had a IMO as to his back condition or one of his other service connected conditions as causing the sleep apnea. Anyway, I provide the same VA memo to you to use. Be sure to include it in the supplemental VAOPGCPREC1-2017.pdf

Thanks everyone for the responses. I'll expect it to get kicked back and I'll just do a HLR. I filed it Monday before I asked this question and the average time for their decisions have been a week or less.

LOL....Hucast21 This is so true! Don't run to VA.com and check everyday like I did!

Then why have these cases published if we can't use them to keep regional offices from continuing to commit error after error. If they would make following certain steps precedent, then that my avoid some denials.....I dunno just a thought but of course the VA doesn't always make sense.

Just to give a little more context. I was denied SC for Migraines based on my SC OSA. I had a nexus letter that, of course, found my migraines were aggrivated by OSA. Did video C&P, examiner of course opined migraines were not secondary to SC OSA. The BVA case is exactly the same circumstances and facts. Migraines secondary to SC OSA. That decision outlined the probative weight that should be given when you have competing etiology opinions, is in my case. in the denial this is the rater's decision: "While we acknowledge your medical opinion letter submitted xxxx The examiner provided a negative opinion with the following rationale..." LOL I got a copy of the examiner's rational (and it was in the decision letter) and it was 3 articles the examiner quoted. Anyway the BVA decision talked about how those two opinions should be evaluated for the probative weight. To me, the deciding factor that I want from that BVA decision is this language... When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R.􀀀 3.102. See also 38 U.S.C.A. 􀀀 5107; Gilbert, supra. Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for secondary service connection for migraine headaches are met Again, exact same set of circumstances as in the BVA case and my case except I think the Veteran may have had two IMO to my one. But the Board does not speak to that.

Did a search and didn't find an answer to this question....but would previous BVA decisions be considered "new" and "relevant" evidence to open up a Supplemental Claim? I thought about just submitting for a HLR but I want these two cases I found that are on point a part of the record. There is no other evidence I am submitting. My argument is the rater did not follow already existing precedent which is what these two BVA cases represent.

Just found out today he was awarded OSA secondary to PTSD. I'm convinced the nexus letter made a difference!

At the beginning of the decision, there should be a section that says "Evidence" and it will list all the evidence the rater considered. Make sure the diagnosis you sent in person is in this evidence list. If not, supplemental claim and resubmit that evidence as new and relevant.

The one thing I have learned is the VA does not "give" anything. I have had mixed results with them but I think the best approach for me has been to go in guns loaded and anticipate their move to try and deny your claim. I can almost see them saying something like "....there is not medical nexus to your SC condition and your claim for sleep apnea..." blah blah blah. There are some good nexus letter providers out there. The one I shared and I worked with Valor4Vet as well. If you have the extra cash to spare to get your nexus letter (and I recommend a DBQ and spouse or personal statement) I say go for it. Whatever you do, don't give up not matter if they deny this claim. But my fingers are crossed for you!

Here you go.... report_Redacted.pdf

Yesterday I received IMO for Sleep Apnea secondary to PTSD...best nexus letter I ever read and you can tell the doctor not only read the decision but spent some time in the records....if its ok to post it I will. Not advertising for the Dr. but he is really good....I just submitted it last night..I hope it gets approved. I'll let the Mods tell me if I can post..removing personal info...

I'll add to this conversation. My stepdad is currently SC for PTSD @ 70% Filed for sleep apnea and did get a IMO from Valor4Vet...of course denied! Now, the rater made some incredible leaps in judgment which I'll argue later but one thing the rater noted was the IMO was "unbelievable". Now I did reread the IMO from Valor4Vet and it was kind of weak. So I decided to get a second letter from a different doctor in Ohio (if I recall) and I'll submit that new IMO as well as argue the outlandish leaps the rater made in the original decision and see how that works. I have not received the new letter yet but I'll update the situation when I do.

Hi All Just chiming in on the OSA. I have SC GERD and got my OSA secondary to GERD. Paid a company to write my nexus letter, took their advice and did my own DBQ (through the same doctor) and did a statement from myself (on how the GERD and OSA affected each other) and submitted all 3 documents and got OSA secondary to the GERD. I'll add that I had a sleep study back in 2013 and had a CPAP issued by the VA and just added those bits of evidence (which was also attached to the DBQ) to the claim. I remember the claim was submitted on like middle of the week and decided that Friday and I got the back pay a little less than a week later. Hope this helps.