Need Help (Berta)

[Didto_69]

HELP

[Berta]

Thanks-I could not open the prior attachments.

The VA is saying that the internet excerpt is not enough to support service connection for sleep apnea due to duodenitis with hiatal hernia and acid reflex.

Claims like this -as the SOC says- need medical evidence which ,in this case, would have to come from an independent medical doctor.

The criteria for getting an independent medical opinion is in our IMO forum.

The IMO doctor can make the nexus statement you need, with references to your med recs and if this doc uses a good internet print out in support of the claim they will give it more weight than the one you used if the IMO doctor gives a full medical rationale as well and could rule out any other etiology for the sleep problems but for the GERD .

Internet print outs can help a claim but they should be in support of other medical statements as the VA wants medical info that is specific to the veteran and not general.

------------------

However ----

I re- read the attachment and maybe this older post will help you- still even if claimed as aggravating a NSC condition, this would still require medical evidence but the VA doctor seemed to support that in the attachment.

"VA examiner opined that it is less likely than not

that you have sleep apnea due to your service-connected duodenitis with hiatal hernia with acid

reflux. VA examiner opined that your duodenitis with hiatal hernia, acid reflux, and hemorrhoids

aggravated your obstructive sleep apnea."

I don't understand why the VA didn't consider the claim under the aggravation regs.

Is there more to the AMC statement?

Do you have a vet rep?

This is something that needs to be called to the BVA's attention.

Aggravation regs

"Posted 12 September 2005 - 09:50 AM

In many years I haven't seen too many claims that consider this facet of service connection.

Within 38 CFR 3.310 (a) an "Increase in nonservice connected disability caused by aggravation from a service connected disability will also be service connected."

(Allen V Brown ,7 Vet App,4391995)

Here an example: the vet's SC PTSD aggravated his NSC HBP and the HBP was service connected.

http://www.va.gov/ve...es2/0510693.txt

Just as a medication needed for an SC condition can cause additional nsc BUT secondary disability that can be rated as SC, many other conditions that are NSC disabilities can be caused or aggravated by SC.

Say you have a SC back problem and develop problems with your knee-there is chance that the SC back is aggravating the NSC knee so the knee could be service connected as secondary or as part of the initial SC condition.

This takes medical evidence and always a good med opinion will help-

A veteran has the right to suggest within their claim, any possible avenue to lead to service connection.

Along with my present AO claim I filed two additional claims that could lead to direct service connected death of my husband.

Although the AO claim is the best medically documented one-

still the c file and other documents revealed two other potential ways to SC PTSD directly to Rod's death.

Also VA medical information clearly had associated his PTSD with his major stroke

yet my SO at the time of my award under 1151 did not advise me to attempt a claim for direct SC death.

My point is that in order to obtain SC for an NSC condition that might even seem remote- if the medical evidence suggests (or if you can get a doctor to state this) that the SC disability is aggravating it, that it becomes "proximately" due to the SC one and is service connectable.

Here is the M 21-1 version of this reg:

7.06 CLAIMS FOR SECONDARY SERVICE CONNECTION BY AGGRAVATION

a. Under the provisions of 38 CFR 3.310(a), disabilities which are proximately due to or the result of a service-connected condition will be service connected. An increase in nonservice-connected disability caused by aggravation from a service-connected disability will also be service connected under 38 CFR 3.310(a). (Allen v. Brown, 7 Vet. App. 439 (1995).) "

Edited September 12, 2011 by Berta

[Didto_69]

VLJ Order

[Berta]

The remand called for the aggravation factor to gbe considered and the medical opinion seemed to definitely cover that-

"2. The March 2009 VA examination report should be

returned to the examiner to address the internet medical

evidence provided by the appellant on the relationship

between sleep apnea and acid reflux, and then indicate

whether it is likely, as likely as not, or not likely that sleep

apnea is due to service-connected duodenitis with hiatal

hernia with acid reflux. Also, the examiner should

provide an opinion on whether the appellant's serviceconnected

duodenitis with hiatal hernia with reflux or

hemorrhoids aggravates his obstructive sleep apnea. The

examiner must provide a complete rationale for all

opinions. The claims folder must be available for review.

3. After the development requested above has been

completed to...."

I am assuming the AMC will transfer the claim back to the BVA who as jurisdiction over it and, if the 'aggravation' is at a ratable level, then the BVA would award it.

I cannot understand why the AMC did not address the 'aggravation ' factor but then again- I feel the AMC is almost useless.

Do you have a vet rep?

[Guest]

You can try to get a medical opinion by a sleep evaluation specialist; when you are diagnosed with sleep apnea, a sleep evaluation is where the sleep specialist tells you why you have sleep apnea. If he/she says it is caused or aggravated by your GERD then you can win. You can also try to get a medical opinion by an Internal Medicine Specialist that can say that your GERD caused or aggravated your sleep apnea and win that way. Both will still need to give a good medical rationale in order for you to win. If you can get these at the VA it will be no cost but if you have to get them as an IMO, it will cost you.

Hope the Best

Berta, I totally agree

VA examiner opined that your duodenitis with hiatal hernia, acid reflux, and hemorrhoids aggravated your obstructive sleep apnea.

Not sure why it was remanded by this statement.

Edited September 12, 2011 by pete992

[Berta]

Pete- the remand to the AMC called for this 'aggravation' facet to be determined by the C & P examiner- and I feel that was supported by the examiner.

I had only one personal experience with the AMC.Like the VARO they ignored my IMOs and other med evidence and then sent my claim to Seattle RO (I live in NY) and Seattle couldnt read either, and then it went back to the BVA, remanded for another C & P , here at the Bath VAMC, and again my IMOs and other evidence were ignored and then the BVA awarded when they got the file back-making point in the award as to the evidence I had which had never been considered.

I wish the BVA had satellite lawyers in every single VARO to review all claims. Better yet just make all of the ROs into the BVA, no middlemen like paper-shuffling ROs.

Lawyers love to read and love to handle evidence. As the BVA web site shows, they get very thorough on reviewing claims under their jurisdiction.

[broncovet]

Berta...

I would like to know where you got your "genuis" license, because I would like one, too. It is incredible that you got that aggravation stuff out of that.

While my 2 cents wont mean much, I would add that AMC is:

1) mostly operated by the RO

2) is the best example of why they call the VA a "bureaucratic mess"

3) Is a "black hole" where Veterans claims go in but cant escape, similar to a "roach motel".