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Hobby

  1. Moderator, you might want to Pin this somewhere, as this seems to be a recurring trend. I have given out this information to others, but I will post it here so that others can find it rather than searching through the forum. First and foremost, claiming and getting sleep apnea secondary to PTSD or Mental disorder is not easy. I have personally seen more lost than won, however, it can be obtained and I myself have personally received it. If you had sleep apnea diagnosed while in active duty, it is usually a slam dunk........for the rest of those trying to get it, it could require a lot of work. I suggest trying to get it both direct and secondary service connected. It is easier to get sleep apnea as a direct service connection obviously, however, most Veterans do not get it diagnosed while in service. Best way to get that resolved is through buddy statements. I suggest getting 3-4 (I personally had 7-8) or more. Do not have them only say that they saw you snoring.......that is great and all, but that is not a symptom of sleep apnea.......it is incidental. They would need to say that they saw you gasping for air, choking, etc. Preferably roommates. If you were deployed, it would be easy to have many people saying that they saw/heard this as you would have more than likely been in an open bay setting at some point in time. You can also have your spouse write up a statement. This all needs to be during active duty periods of times and dates need to be included. M21-1 reference III.iii.2.E.2.b "Types of Evidence VA May Use To Supplement or as a Substitute for STRs" allows for buddy statements to act as STRs for medical evidence.........if they are certified "buddy" statements or affidavits.............having them written on VA Form 21-4138 solves this issue as it has the appropriate verbiage written near the bottom. Under M21-1 reference III.iii.1.B.7.a and 38 CFR 3.200, it meets the certification criteria..........problem solved. From my experience, getting all of the buddy statements needed can take longer than you originally anticipate....plan ahead. Now, for secondary criteria. Have you ever been diagnosed with alcohol abuse (it is frequently written as "ETOH")? If so, has it been attributed to your mental disorder or did it exist prior to that and is it considered willful? If you have been diagnosed with alcohol abuse, and it is attributable to your mental disorder, guess what, alcohol consumption is attributable to sleep apnea. would suggest that you start doing your own academic research. You might be able to locate peer-reviewed academic journal articles (those are the types of articles that you want to submit) through https://www.researchgate.net/. If not, another alternative is using a college database to search academic journals through. Ah, but you need to be a college student to use the database to search academic journals through. One might make an argument that you could register for classes at a local community college (you can even register online nowadays without even stepping foot on campus) and even register for "late start" classes, and have access to the aforementioned database immediately (hint hint, look in the academic journal Chest); one could easily find within a 60 minute search at least 5 appropriate and recent journal articles clearly establishing a link between specific mental disorders and sleep apnea; there is a clear link between PTSD, anxiety disorders, depression, and especially schizophrenia. One might make an argument that you could simply then disenroll from the classes that you enrolled in by the date specified in order to get a full refund, thereby being charged nothing. Save the academic journal articles as pdf files, and create a work cited page (bibliography) for them in APA format (google is your friend.) You now have a choice........... Submit your claim with the buddy statements, mental health notes from a private provider, and evidence that you have and go with either a VA exam or vendor exam (whichever is given) or you can get an IME and IMO from private providers. If go the latter route, I would schedule one with a sleep specialist, why, because sleep apnea is their specialty. Pulmonologists also fall within this scope as well, though I suspect that you will have better luck finding a sleep specialist believing there to be a link between mental disorders and sleep apnea. You will get a Sleep Apnea DBQ and an IMO. Make sure that you have your C - File first as an examiner is required to have access to it and state that they have seen it on the DBQ for it to acceptable proof to the VA. I would also get one from your psychologists/psychiatrist (Make sure that they are a psychiatrist or a psychologist.....if a psychologist, they need to be PsyD or Ph.D., or under the observation of a Ph.D.). Make sure before you solicit those medical opinions, that you acquire "buddy statements" from 3-4 (or even more) people with whom you served. Roommates would be best, or people who slept in close proximity to you.........again, this is only if you believe that sleep apnea developed while you were in Active Duty service. Make sure that they are written on VA Form 21-4138. Make sure they say that they witnessed clear symptoms of sleep apnea i.e. gasping for air, choking sounds, moments where they visibly or auditorily could determine that you ceased breathing etc. Remember, you will want the sleep specialist and the psych professional to have your academic journal articles and buddy statements. Once you have all of them, solicit your medical opinions from the two aforementioned providers. Ideally, you would love for the IMOs to say that they believe that you could be both direct service connected for sleep apnea or secondary due to mental disorder, possibly even say that the mental disorder and sleep apnea aggravate one another (which there is medical evidence to support.) If you opt to go the route of getting the private IMO and IME, you will obviously submit those with your claim, and all medical records from private providers pertinent to sleep apnea and your mental health treatment, buddy statements, academic journal articles, and a nicely written statement written by yourself on a VA Form 21-4138 talking about the issue at hand and summarizing everything concisely. Mention everything that you are providing that you wont to be considered for the claim, and when the issue first manifested.
  2. I did not see my most recent decision denial letter in the mail. Anyone know where I can get ALL of my past denial letters and their reasonings for denying me? Also, is there a way to see all of my service connections and their wording on why they were able to service connect me? One reason I also want to know the reasons I am service connected to things is because I was recently approved for Hypertension. They denied me Sleep apnea in the past because of my weight. But I believe in this recent decision, I leveraged the fact that I gained weight due to my mental health service connection. And I was able to use that as a nexus for hypertension. I am now wanting to point toward that service connection approval and use it as an "It was recognized in my Hypertension claim that I gained weight from Anxiety/depression service connection. I am wanting to transfer that recognition to my reasoning for my service connection to sleep apnea. Since the VA had prior listed the reason that I have sleep apnea is due to my weight." Anyone know where I can get past approval and denial letters with details of connections?
  3. Hi, I try to keep it short and hopefully make sense. 2011 Aug - Got out did Pre discharge Disability Claim with VSO on base before I went on final leave. 2011 December - VA Examination, Chronic Fatigue Syndrome, I dont have a copy of this exam only the one from 2013. 2013 June - Chronic Fatigue Syndrome DBQ This Dr. typed in section #1 Diagnosis; If there are additional diagnoses that pertain to chronic fatigue syndrome, list using above format: The veteran was misdiagnosed in May 2011. He does not and he never did have chronic fatigue syndrome. in section #2 Medical History: a. Describe the history (including onset and course) of the veteran chronic fatigue syndrome: Veteran was tired and sleepy for a couple of weeks and was fine one month later. Asymptomatic at this time. 2013 Aug - Rating Decision from the 2011 claim it took 2yrs to complete. in this rating Decision there is no mention of the DBQ for Chronic Fatigue Syndrome in the denial area and there are no deferred claims. There are 9 claims some granted and denied but nothing about the Chronic fatigue. They only mention the Chronic Fatigue DBQ in the All evidence considered section: 2017 - VA Neurologist put on the comments for my Primary Care Dr. For Fatigue please consider sleep study 2021 - Was diagnosed with Obstructive Sleep Apnea by private Sleep Doctor 2021 - I got a Rating Code sheet and there no mention of Chronic Fatigue Syndrome. When I filled the Pre discharge Disability I dont recall we talked about Fatigue syndrome so I am pretty sure it was not part of the claim, but somehow the VA ordered a DBQ for it maybe because it was within the 1yr mark since I got out that I was diagnoses with Chronic Fatigue Syndrome. Would this be considered some type of Duty to assist error? as the C&P Doctor said I was misdiagnosed but then the VA did not order a sleep study to figure out my fatigue back then. So all this time I been having low energy levels / fatigue / sleepiness due to the Sleep Apnea since I got out but I was misdiagnosed and not given a sleep study. Heck even my primary care Doctor failed to follow the Neurologist suggestion to order me a Sleep study. What are the chances that the VA would grant Sleep Apnea back to 2011 since I dont recall claiming it but again somehow they did a DBQ for the fatigue issue. Thanks.
  4. I am looking for anyone who can provide me some guidance. I was awarded 20% disability for knee arthritis on 5-17-21 but denied sleep apnea as secondary to my knee disabilities on 5-24-21. I did have buddy statements, a letter from my wife, documented diagnosis of severe sleep apnea, a prescription for my CPAP and a nexus letter from my sleep doctor. The nexus letter was ok but probably not as strong as it could have been. I am in the process of obtaining a second nexus letter. My question is, does it make sense to file a supplemental claim or should I appeal directly to the VA Board of Appeals. My VA Rep said we could go either way but the board will take 4 years. I dont want to waste up to 120 days if the local office is more likely to deny me again. Does anyone have experience with getting sleep apnea service connected at the supplemental review? Thanks for any help.
  5. I have several items I have filed and denied. Latest is my sleep apnea. I am 10 percent for sinusitis. Went before a judge he found mistakes made in the past and remanded to regional office. I went to a dr. Appointment of course she had no certification or experience in sleep apnea. I have all sorts of documents from members of my unit explaining I would be snoring and when I stopped they realized I quit breathing. So they would shake me to wake and get me breathing. Also letters from an ent. And a specialist in obstructive sleep apnea. Now they have denied because I didn't get diagnosed for many years after ETS. I had never even heard of this. Really am at my ends whit. They have remanded back to the judge. Dont know what else I can do. I have a letter of un employability .but can't file or appeal till this is over this is my 6th time each with more documents as I learn. Any suggestions appreciated
  6. When I was in AIT (1971) I was given a climate profile. I went on sick call one morning for an upper respiratory problem and next thing I knew the ENT doc issued me a profile that basically stated I wasn't supposed to be stationed in a cold, damp climate. I later waived the profile and don't remember any more treatment. Currently, I'm at 50% for Unspecified Depressive Disorder and PTSD. I'm diagnosed by VA with OSA and have been given a CPAP machine. I'm thinking of filing a claim for the sleep apnea and possibly rhinitis. I'm a little confused as to how the best way to file would be, OSA secondary to UDD PTSD or Rhinitis or a supplemental claim? Or if the rhinitis claim is even do-able? I am treated at VA for allergies. I'd never considered a claim for rhinitis until reading some of the posts here. Oh, I also am given meds for PTSD. Thanks
  7. I have been denied for sleep apnea, I Have statements form x-spouse and spouse and Buddy's I served with that they witnessed my issues, I was on recruiting duty and had no MTF within 70 miles to get treated, as we all know how stubborn us veterans can be going to the doctor, however I did go to my private physician and complained of not sleeping well and it was documented that i was waking up frequently and gasping for air, he recommended me having a sleep study conducted which I did not until 3 years later and i was diagnosed with severe obstructive sleep apnea and was issued a cpap, I use it faithfully and have for years, I went to the VA in 2019 to have a sleep test done because My cpap was breaking down and it was discovered still I have severe sleep apnea once again and was issued a new machine. When i went to my C&P exam the doctor favored me as at least likely caused by military service then the VA turned around and sent it to another doctor for a opinion because first doctor didn't provide a rationale, the second doctor turned it now because i wasn't diagnosed until 2013, I now have a BVA appeal awaiting on a hearing. Has anyone experienced this? It is so hard to get a private physician and even my private sleep doctor to write an opinion for my sleep apnea, they all seem to be scared of lawsuits. Any recommendations?? Thanks
  8. Good morning everyone, I just got rated at 70% for PTSD after previously being denied as not service connected. For the first claim, I was going through a company (VAclaimpros) which was a big mistake. I appealed and just simply told the examiner what I was going through as well as my family. I submitted a letter from my wife and a report from when I was Police Officer stating that I had PTSD and the list of medications. I have previously been denied claims for sleep apnea and tinnitus. They acknowledged that I did have sleep apnea from my personal medical records and the UPPP surgery I had years ago but said it was not service connected. They also acknowledged my hearing issues but said it was not service connected. I have been diagnosed with anxiety, depression, ED, Peyronie's disease (because of the ED), hypertension and insomnia from both private and VA doctors. I have been taking medicines for all three. I have sciatica My question is what should I file a secondary claim for or if I should even file one at all and leave well enough alone since I have 70%. Thank You
  9. I need help. I first applied for benefits in 2016 and was denied in 2017 because the VA could not find my medical records. I was able to locate my medical records and I did a NOD. I filed again for the conditions and sent in my medical records. Fast forward to 2019. I was able to get C&P Exams at the end of 2019 and Jan 2020. My Sleep Apnea exam took about 3 minutes or so...questions were: When did you enter AD? When did you retire? Do you have a CPAP? I had submitted a buddy letter from the EX and my medical records showed weight gain, snoring, ENT problems, etc.I answered the questions and affirmed that I had a CPAP. That was all of the questions I had for Sleep Apnea. I had a few other exams and even a hearing exam. I was asked about my MOS/AFSC and told them the first five years was flight line work at a SAC base. I told them of the ringing in my ears and thought I'd be rate for tinnitus. My hearing exam showed I did not have much hearing loss. Fast forward again. I was asked to submit to additional exams for my feet and hands in Nov 2020. In any manner, I was finally rated at 20% for my feet and zero for my broken fingers. Since I had to file a NOD I elected higher level review by a DRO. My question is can I file a rebuttal for the other items filed? I need this ASP since I just received notice on 1 April 2021. Thank you.
  10. I was diagnosed with sleep apnea and issued a cpap. I’m currently still in the service. When I get out, will I have to re do the sleep study or will the one I did already suffice?
  11. I filed a claim for Sleep Apnea secondary to my PTSD, which is service connected. I have been diagnosed from the VA as having sleep apnea, and given a CPAP to wear at night. I used Carpenter Chartered Law Firm to do the claim, but got this denial letter (attached is an excerpt). In it, it says "In the absence of other major risk factors such as obesity it would be reasonable to attribute OSA to PTSD as this is considered a risk factor for OSA from uptodate.com". My thought is that if both obesity and PTSD are considered risk factors, shouldn't it be a 50% chance that it could be either obesity or PTSD, and go to the veteran's favor? And doesn't that mean that attributing OSA to obesity is just as speculative as attributing it to my PTSD? I had Carpenter Chartered start an appeal, so I am hopeful to get it approved.
  12. A little background first on this specific claim to provide greater context for the readers. I had no idea that i had OSA until i got married and through the years my wife has told me about how i would snore really loud, stop breathing at night, choke, etc. pretty standard stuff for anyone that has it. I had buddies in the Marine Corps who told me the same thing after our first deployment, but i had always chocked it up to my dad snored so i snored, the stopping breathing thing was weird but i was 18/19 so your health isnt a primary concern and BAS is only for bones sticking out. I got out in 2006 and didnt make a claim for OSA until 2016. First i talked to my primary care then was referred to a VA pulmonologist. He ordered a sleep study and the VA fumbled it sending me to a private facility and did a in home test. When the results came back i saw in my VA health record the Pulmonologist was terse with his message saying he wanting a in facility sleep study so a month later i did mine at the VA overnight. I was diagnosed with Mild OSA and given a CPAP. When the CPAP arrived i spent a month trying to get it to work but every morning it would show only 45-60 minutes of time. I have nightmares at night, some i remember some i dont but would rip off the mask or when i woke up would be so worked up i didnt put it back on. I do cycles of trying it for awhile and stopping for awhile, giving it a chance because my wife is worried about the OSA and its health effects. My claim history was this, as i stated i made my first claim in 2016 and was denied. I reopened the claim (when that was still an option in 2018) and was denied again. What i submitted was bascially the VA medical record showing that i had it, that i was ordered a CPAP and sworn statements by myself, my wife and buddies in the Corps that stated they saw symptoms in 2003-2006. I had NO nexus or medical proof that it began in service I made a mistake in 2019 when it was denied again and NEVER filed a NOD as i kindof gave up when that and other new claims for increases were denied, but I DID make a intent to file back in July 2019. I was out of the VA regulation changes loop and didnt know that they had gotten rid of reopening and moved to the Supplemental evidence route so in February through April i decided to really focus on making a quality claim since my 2016/2018 claims were more shot in the dark hoping that the VA would just grant it. I went to specialists in the field for the claims i was making and got updated diagnosis of symptoms and effects, got my sworn statements (which in my opinion has more 'umph' than a buddy statement) more detailed in terms of observed symptoms, timelines and effects upon my life as well as i went out and got two IMO's. The first IMO was for PTSD from Dr. Elaine Tripi in Michigan whos IMO got the VA to drop their attempt to reduce my rating in 2015/2016 (and i suspect it was because her IMO made a case for an increased rating). In that IMO she detailed my history, current symptoms, etc as well as opined on how my PTSD affected my OSA symptoms and how it interfered with its treatment. I also got a IMO from Dr. Anaise who wrote a lengthy (near 50 pages) on how my OSA is aggravated by Tinnitus and PTSD and interferes with my ability to go to sleep, stay asleep and interferes with my treatment. When i submitted the claim (reopen was still available as an option on ebenfits) my new claims, increase and "reopen" were all lumped together as one big claim and sent off in April. As a sidenote whenever i send my claim i do so through ebenefits as well as fax AND send CERTIFIED MAIL WITH RETURN RECEIPT. i keep a copy of the USPS receipt with tracking, Cert Mail receipt and the return receipt and staple that together with my hard copy claim evidence in a folder for each claim ive ever made. The VA has a way of "losing" evidence and if you ONLY submit via ebenefits, regular mail and/or fax you cant prove they received it per say. This DOESNT mean they wont pretend they didnt get it but what it does is allows you to prove upon appeal that YES you did send it in the time window necessary for your claim AND that they did receive it because the return receipt shows Jim VArep did in fact get it on such and such day. So if you get denied its really important to look at your cfile after to see what evidence the rater actually looked at and if they dont have ALL the evidence in that file you can appeal on those grounds in conjunction with more evidence if necessary that X doctors exam or IMO proves your case, wasnt considered AND the VA had received it. So a few weeks after i submitted it, the VA sent me the normal letter stating they had received my claim for X,Y,Z New & increased claims but i didnt see anythign about OSA which was weird. a week later i got a letter from the VA saying that my claims for OSA were not new, had been denied previously and were not on appeal and gave me a list of options. I chose Supplemental Evidence since the IMO's were "new evidence" to be considered and met the criteria and it had been over a year since my denial so i couldnt submit a NOD and get the backdated effective date. This was my fault. One i gave up in 2019 and didnt file a NOD to hold my place and Two i didnt keep up to date with new VA regs regarding reopened claims, etc. Since that supplemental claim was received on 4/24/20 (todays date is 6/18/20) I have had two psych exams and two records reviews through QTC (private company the VA contracts to do DBQ/exams). The first pysch exam was related to my request for an increase for PTSD back in April and in May i had a NP contact me who was reviewing my med records for OSA and had follow up questions regarding my condition both current and past. In that conversation i talked about how i never went to go get checked because i never knew what OSA was at that time, thought it was normal to snore, etc., how BAS is frowned upon in the Marines for things like that, my history with it since i got out up to now and how my nightmares make me rip off the CPAP at night. I did ask her if she had seen my imo, other evidence and she said no JUST my medical record. I know examiners arent raters and all but I find it weird that VA will deny IMO's as valid if they dont "review veterans entire file" but will accept something from a examiner if its negative when only their VA med file is shared. Its great advice to always bring your evidence with you to a exam but given the current COVID situation ALL of my exams thus far have been telephone or video. I asked her what the exam was specifically for or what they asked her to examine and she said it was basically whether or not my OSA was service connected and occured in service. I do believe it was but i was making the claim as SECONDARY to PTSD and/or Tinnitus as an aggravation which she was unaware of. I fired off some angry messages via the IRIS system to the VA regarding this (no idea if they got included in my record or reached a rater since the only response i got was "thank you for contact us heres how to make a new claim"). Within the last 3 weeks i had a 3rd & 4th "exam". The third was a MD who was reviewing my records as well and asked alot of the same questions, she was also unaware this was a secondary claim for aggravation and had seen no evidence submitted or my entire file so i went through it with her again. The 4th exam was another psych interview which i was told was to examine my secondary claims to OSA, but knowing the VA i knew it was basically another review of my ENTIRE PTSD claim ive had as well. Vets should be aware that even if a exam is about something specific any evidence or statements made that can negatively effect an existing general disability & will be held against you. This was quite clear when he just asked about current PTSD symptoms and never ONCE asked about my OSA, etc. So i had to bring that up myself. VA.gov check claims hasnt been updated since a week after my claim submission. my OSA claim has said "we dont know your status" even now and my other new/increased claim stopped after "request for more information" (i.e. requesting new QTC exams). So ever few days i check that as well as ebenefits to see if any of the DBQ's show up in my blue button (none have but im guessing because QTC doesnt have to update the way in house VA does). Finally today i see on my disabilities list that OSA was granted secondary to PTSD for 50% bringing me to 90% with an effective date of 4/24/20. I know that this ISNT the same as a letter from the VA but i know someone who is a VA rater who has been giving me updates on my record so im 99% certain this ebenfits update is accurate. The takeaways are this. 1) Do the damn research and work the claim yourself, no VSO or rep is going to care as much as you do. You care about your case, they have 15,50,100 other vets whos cases they are working and even if they are a great VSO/rep they cant possibly give a crap as much as you do. dont hope the VA just "gives" you the rating you deserve make it so they cant NOT give it to you with the proper evidence. 2)IMO's are golden. I know not everybody can afford them, i couldnt per say and had to sell some things to come up with the $500 for Dr. Tripi and $1500 for Dr. Anaise, but they were well worth it, without them i definitely wouldnt have gotten my OSA approved. I think have both a MD stating both the phyiscal and mental nexus and a Psychologist stating the pure mental side gave it a one two punch. 3) Along with the IMO go to doctors/specialists in your area and get documented evidence of you issue, ask them to be detailed in the exam notes. I even emailed a couple time asking the doc (this wasnt for OSA but a different claim, but good general advice) asking them to update the notes to specifically include certain symptoms and effects upon quality of life. Having this helps alot, combined with IMO's its very difficult for a random NP to override their findings with one exam or phone interview. Remember the VA is military based in that the ranking officer rules. So if you only have a NP (nothing against NP's this is just how the VA works) from a urgent care saying you have OSA caused by PTSD or that your shin splints are 8/10 pain and they have a pulmonologist, MD or specialist say its only 1/0 and doesnt effect guess who wins. If you have two psychologists but yours has great bonafides and background and theirs has only been practicing for 5 years solely at the VA yours wins. Im not saying dont go to a primary care to document because youll only see a NP all evidence helps but be aware if they pull out a MD who counters that exams findings youre likely to lose. Because they will always want to lean to denial and if their person has more experience or is a specialist that will win over what you submit. Dont give them an option, and even if they do decide to rule against you, you can make a great appeal based on the fact they sided with their NP over a specialist in the field your making a claim for who knows more. 4) Never let claims die. Dont make a new claim until your ready to with great evidence (file a intent to file first though to preserve backpay/effective date) If denied make sure you keep a reminder about the NOD date and when you do file a NOD make sure that is certified mail with return receipt to prove you mailed it/VA received it before the deadline, because if you dont and they can make a case it was received 24 hours after the NOD deadline you lost you backpay date and possibly years of backpay. Now there are situations where claims die but if theres a opportunity to still make it on appeals hire a GOOD (there are alot of crappy ones) appeals attorney and move forward. I know they take 20%+ of your backpay but if you aent comfortable enough to navigate the appeals process its well worth it. 5) stay up to date on new VA regs, Hadit is a great source for this you dont want to be like me thinking that certain avenues are still open and they arent. If I had stayed up to date i wouldve been able to file earlier for the OSA and preserve YEARS AND YEARS of backpay now im only going to get 2 months. 6) I didnt do this for this claim although i should've and kept a diary of when i was using the CPAP, roughly when i ripped it off, data on how long i wore it, frustrations over not being able to wear it, info on my nightmares causing me to rip it off etc. years of diary entries wouldve been a help. I didnt need it in the end but if you cant afford a IMO things like this can help because theres NO SUCH THING AS TOO MUCH EVIDENCE. A diary is one of the key things that helped me win my migraines case. for months prior I kept a diary of my headaches and effects, then transcribed them into ebenefits health diary. I am not perfect at it but i now write as much as i can as often a i can in this diary about ANY service connected or possibly service connected illness (especially things that could be considered aggravated by a service/possible service connected disability). That way when you are making a claim or fighting a reduction you can pull out timestamped entries for months/years relating to it and it makes it harder for a rater to think you pulled this out your but last month to make a claim. A big thanks to everyone on HADIT. i did alot of research here through the years to help make my claims better and it worked Another big thanks to Dr. Anaise and Dr. Tripi for their outstanding IMO's that helped me win this.
  13. I was discharged January 29, 2011. During my time in I did not have a sleep study, but some sleep issues were documented. I filed for disability for sleep apnea through the VA January 9th, 2012. By Feb 22 2012, I had a sleep study. I was diagnosed with obstructive sleep apnea and issued a CPAP. After that my life turned into complete chaos with a divorce and losing my house to my wife. I moved probably 8 times between 2012 and 2014. In 2013 I got a call from the VA saying that my claim was about to be closed, and that I don't have evidence of service connection for my sleep apnea. They also told me that I had no medical service records on file. They extended my claim to give me time to get my records in and any other supporting evidence. I never got around to submitting my copy of my medical record (that I had made prior to separation just in case this happened) due to my life being a complete mess. By march 2014, my case was denied and closed. Comments are "STRs unavailable". Now 7 years later I'm working on getting this taken care of. I plan on doing a supplemental claim. The VA website says there's no time limit for doing a supplemental claim, but it's best to do it within a year of the decision. I have 5 buddy statements from fellow service members that were roommates and shared the same bunk room with me on duty for 2 years. I am working on getting a nexus letter from my primary care doctor. I also have email correspondence with a medical officer on my ship in November of 2010, requesting to be seen for possible sleep apnea, due to excessive snoring and stopping breathing in my sleep, to which he responded. I was not able to setup a date before separating that coming january. The email I sent read as follows: Dated 22NOV2010 "Good morning Sir, this is AD3 (my name) in IM-2 on CVN-71. I am having problems logging in to the computer today so I'm doing this from my Gmail if you don't mind. I came to medical today but it was after sick hall hours and the personnel at the desk told me to email you rather than coming in tomorrow. I get out of the navy on Jan 28 and I have recently discovered that I could possibly have sleep apnea. My duty section leader brought it to my attention not too long ago and said I need to get it checked out. I asked my wife if she noticed anything different while I sleep and she said I stop breathing in my sleep quite frequently. I woke up the other day to my wife crying and she had me sitting up while I was sleeping because it scared her so much. I don't know what to do because I have never had any health issues before. Any help would be greatly appreciated, Sir." "I have never had any health issues before" might've screwed me, but I'm not a Doctor, so I don't know. Will a copy of that email conversation between the medical officer and I help my case? Should I submit it as evidence as "seeking treatment" while on active duty? Any other advice/tips?
  14. Hello and thanks for reading. I have tried to research the FAQ but keep getting the error message " We could not locate the item you are trying to view. Error code: 2F176/1", so hopefully this is not to repetitive. First a little bit of a back story- I have 44 years combined service for pay (Both active duty (combat) Active Reserve, NG and returns to Active duty for deployments. I used a state VA representative to help file my claim and during the process (the VSO) filed all my claims at one time. These included PTSD, Type II diabetes (presumptive), Tinnitus, Bilateral hearing loss, and sleep apnea, neuropathy in my left foot, right foot etc. After an C&P I was given a 100% P&T for PTSD (service connected - Combat). My other issues were initially deferred. After looking at my information on eBenefits (still waiting of subsequent decision letters, I found the following (note I have completed all the C&P examinations as requested) 10% For tinnitus (service connected) 20% for Type II diabetes, (service connected) 10% for myopathy in my left foot, 10% for my right foot (service connected) 0% for bilateral hearing loss (service connected) and 0% for sleep apnea (NOT service connected). So while I was surprised at the sleep apnea rating, I think that perhaps this was a result of the the way the claim was filed, in that it was not filed as a secondary to the PTSD. So the questions then becomes, since I am not seeking SMC, as I do not presently see a real path to it in my present state, is pursuing the Sleep Apnea really a hill worth climbing, since as I understand it because I am already 100% service connected then the VA will provide my CPAP needs. So anyone out there see something I am missing, AND if I do seek to address the Apnea do I simply file an appeal to the decision letter or do I submit a new claim for the Sleep Apnea, as secondary.
  15. I was just diagnosed for sleep apnea OBSA by the VA and I have a follow up appointment I guess to get my CPAP machine. Does anyone have any insight on what to expect from this initial appointment?
  16. After Denials for OSA both direct and secondary to PTSD, this spring I decided to spend the money on a IMO and do the claim right. I contacted Dr. Anaise and was told to send all my records, decision letters and $1500. After about a week I was emailed with a final IMO report that was around 40-50 pages. It was excellent & well researched. Within 6 weeks of submitting the IMO with a supplemental claim OSA secondary to PTSD was approved. Yes IMO's dont guarantee anything and they can be expensive but they are definitely worth it when you have been denied already and have nothing else to submit and someone like Dr. Anaise will always outweight the NP the VA usually has doing exams.
  17. I am secondary serviced connected 70% percent for MDD and Anxiety (Tinnitus can't sleep). I was recently diagnosed with OSA sleep apnea by a VA doctor (sleep monitor test) and my question is, if I were in the future to file for an increase for my MDD and Anxiety, could the VA reduce or terminate my compensation because of the Sleep Apnea diagnosis (OSA)?
  18. I’m currently at 90%. Part of it is 70% for Insomnia and PTSD. I was originally at 30% for Insomnia and then filled for PTSD which total is 70%. Now I have sleep apnea pending with the use of a CPAP. If it gets approved, do you think it’ll raise my 90% to 100% or will it lower or even stay the same since insomnia and sleep apnea is in the same category? Current ratings are: Right hip impingement 10% Lumbosacral strain 10% Left tennis elbow 10% Post Traumatic Stress Disorder (PTSD) with Insomnia 70% Right knee strain 10% Bilateral Plantar Fasciitis with flat foot 50% Total 90%
  19. Okay guys and girls, gather round the fire. This is a bit of a read, but THIS is the best private doctor submitted opinion Ive come across while Ive been 'on the inside'. Most of the ones I see are a paragraph or two, wishy washing around about the condition, and the doctors opinion- with no WHY, other than "I'm the doctor, and I examined them and this is why I think so.....". That doesn't really cut it. Yes, I know that C and P docs don't do anything this extensive, either, most of the time, and I can't defend that either, but this particular condition that they are claiming is already thorny, and its 'by way of' another caused by an SC disability. For those of you with OSA caused by obesity that have been shot down, do a word (CTRL-F) search for the word "intermediate" as in "intermediate condition". There is an interesting tidbit on that page RE obesity specifically, and this was how I claimed my OSA in 2014 when I appealed, minus the VA letter, since it hadn't been written yet. This was my doctors chain of thought on my OSA as well. Read this, and give it some thought when you are constructing your claims, and writing your boilerplates for your doc to sign after examining you. I have no idea what this persons rating will be, or if they will prevail, but damn if this didn't stick out as what I would want to see, as a rater, if I was one. This resembles a few of my later claims that I filed for myself in its construction and layout, minus the calling myself a doctor. The overall layout and organization is on point, and will make it easy for whomever gets it. CAS MEdObese.pdf
  20. Okay guys and girls, gather round the fire. This is a bit of a read, but THIS is the best private doctor submitted opinion ive come across while ive been 'on the inside'. Most of the ones I see are a paragraph or two, wishy washing around about the condition, and the doctors opinion- with no WHY, other than "Im the doctor, and I examined them and this is why I think so.....". That doesn't really cut it. Yes, I know that C and P docs don't do anything this extensive, either, most of the time, and I can't defend that either, but this particular condition that they are claiming is already thorny, and its 'by way of' another caused by an SC disability. For those of you with OSA caused by obesity that have been shot down, do a word (CTRL-F) search for the word "intermediate" as in "intermediate condition". There is an interesting tidbit on that page (4) RE obesity specifically, and this was how I claimed my OSA in 2014 when I appealed, minus the VA letter, since it hadn't been written yet. This was my doctors chain of thought on my OSA as well. Read this, and give it some thought when you are constructing your claims, and writing your boilerplates for your doc to sign after examining you. I have no idea what this persons rating will be, or if they will prevail, but damn if this didn't stick out as what I would want to see, as a rater, if I was one. This resembles a few of my later claims that I filed for myself in its construction and layout, minus the calling myself a doctor. The overall layout and organization is on point, and will make it easy for whomever gets it. CAS MEdObese.pdf
  21. I am prior Active Service, and completed the rest on my 20yrs in the Guard. like me, I never went to the doctor however prior to retirement I was put on tittle 32 order (single days) active orders. On these single days of active duty, I was diagnosed with asthma, and sleep apnea. is this enough to be considered "in service"... the VA so is technical. PLEASE HELP
  22. Your Higher-Level Review was closed Your Higher-Level Review was closed. Please contact VA or your Veterans Service Organization or representative for more information.
  23. Due to my tinnitus being very bad, I was awarded a 70% rating from the VA for anxiety and depression secondary to my tinnitus due to it keeping me from sleeping. I have started my counseling with VA social workers and psych doctors from the VA. I ask my VA primary care doctor does the VA offer any treatment for tinnitus and the answer was, "There is no treatment the VA offers for tinnitus, just wear ear plugs and stay away from loud noises". My question is why would a PA want to test me for sleep apnea to see if that is causing my sleep problems but I can't get treatment for what I know keeps me up at night. I'm just curious if the VA doc is trying create a scenario that if I do have sleep apnea, then that is what is causing my anxiety and depression not my service connected tinnitus. I know sleep apnea is serious and I'm going to get the test but can the VA reduce or take my compensation if the PA opinions that she thinks my depression is due to sleep apnea? Can she override two PHD Psychiatric doctors opinions? One IMO and the other a VA psychiatrist? Thanks for your responses in advance. Elders please chime in.
  24. 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).
  25. I was looking at Ebenefits under the 'disabilities' section, and I noticed that, with CPAP, my Sleep Apnea rating is listed as 20% rather than the expected 50. I had to appeal my sleep apnea 1 time to get SC. Has anyone ever seen this? It looks like it is numerically at 20, but they paying it at 50? Misprint?
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