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less likely than not


dvikings

Question

Good morning all.

 

I had a friend who had his C@P exam last week. He had  a nexus letter from his specialty doctor stating his condition suggests that his condition happened during military service.

After checking his DBQ, the VA doctor noted the doctor NEXUS letter however, she opined that the condition was less likely than not that veterans condition occurred during military service.

Any chance the nexus letter carries more weight than the VA exam with the raters.

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Will your friend be able to permit you to scan and attach the decision here?

(Cover C file # ,name, address, prior to scanning it.)

." He had  a nexus letter from his specialty doctor stating his condition suggests that his condition happened during military service. "

That is too weak. He needs a stronger  IMO I will bump up the IMO criteria again.

 

Th

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C&P exam reports, or 'nexus letters' are more probative, i.e., carry more weight, if the report or letter...

  • cites relevant medical research literature
  • provides a cogent rationale, i.e., clearly explains why the condition was or was not incurred during military service
  • makes it clear that the examiner reviewed all the ‘evidence of record’ (“all procurable and assembled data”) — military records, treatment records, statements by the veteran or others, etc.
  • conforms to expectations the Court of Appeals for Veterans Claims (CAVC) set for an examiner’s expert witness testimony (the exam report), as enunciated by the Nieves decision:1

(1) The testimony is based upon sufficient facts or data;

(2) the testimony is the product of reliable principles and methods; and

(3) the expert witness has applied the principles and methods reliably to the facts of the case.

All the Best,

Mark

P.S. Note that the federal courts, including the CAVC, use traditional legal terminology, whereas the VA has created its own terminology. Here is a ‘translation guide’:

Testimony = C&P examiner’s report.
Expert Witness = C&P examiner.
Expert Witness Opinion = Conclusions or opinions reached by the examiner that help to answer a legal question, e.g., diagnoses and the etiology of those diagnoses.

Footnote
1.
 Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2009)

Edited by Mark D Worthen PsyD
added citation for Nieves opinion
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Thank you Berta. Here is the DBQ from the C&P. Not sure how to attach. So I cut and paste.

LOCAL TITLE: MEDICAL C&P REPORT

STANDARD TITLE: INTERNAL MEDICINE C & P EXAMINATION CONSULT

 

AUTHOR: URGENCY: STATUS: COMPLETED

Sleep Apnea

Disability Benefits Questionnaire

Name of patient/Veteran:

Is this DBQ being completed in conjunction with a,

C&P Examination

Request?

[X] Yes [ ] No

ACE and Evidence Review

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

Indicate method used to obtain medical information to complete

this document:

[X] In-person examination

Evidence Review

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

Evidence reviewed (check all that apply):

[X] VA e-folder (VBMS or Virtual VA)

[X] CPRS

Evidence Comments:

no active duty str available in vbms for review. files labeled

strs were

from post service

1. Diagnosis

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

Does the Veteran have or has he/she ever had sleep apnea?

[X] Yes [ ] No

[X] Obstructive

ICD code: G43.77 Date of diagnosis: 2014

2. Medical history

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

a. Describe the history (including onset and course) of the

Veteran's sleep

disorder condition (brief summary):

VETERAN IS HERE FOR CLAIM OF SLEEP APNEA

RIGHT HANDED

MILITARY: MARINE CORPS 1998-2/1992 1341

WORK: ENGINEER

VETERAN STATES:

ONSET: 1991 COULDN'T SLEEP. GUYS IN TENT COMPLAINED OF LOUD

SNORING. PUT

VETERAN ON NIGHT SHIFT WHILE DEPLOYED. HAD TO HARD TO

FALLING ASLEEP.

WOULD ALSO WAKE UP IN THE MIDDLE OF THE NIGHT LIKE EVERYONE

ELSE FROM

ALARMS AND NOISES SO DIDN'T THINK IT ODD.

WHEN GOT BACK TOLD HAD BELLS PALSY NO TREATMENT.

IN 2006 GOT TO HAWAII BREATHING GOT BAD WITH FREQUENT

PNEUMONIA

EPISODES. SENT TO SPECIALIST AND DID SLEEP TEST DUE TO

BREATHING,

SNORING AND SLEEPING PROBLEMS.

DX WITH OSA.

SINCE STARTED USING CPAP, STILL HARD TIME FALLING ASLEEP

BUT NOW CAN

STAY ASLEEP THROUGH THE NIGHT.

STILL TIRED DURING THE DAY EVEN IF SLEEPING BETTER DESPITE

USING THE

CPAP.

NO MEDICATIONS FOR SLEEPING.

?date letter wife. after gulf war noted having hard time

sleeping.

snoring and lack of breathing choking or gasping. finally

got him to

doctgor in 2013 and dx with osa. still snores with cpap but

not as

loudlyy.

7/18/08 wt: 222

12/30/13 pul eval ros: no snoirng yet dx snoring long

standing hx of

snroing of sinificance. sxs to suggest insomnia.

1/10/14 pul eval diaphragm paralysis, ros notes o snoring

no htn but

some daytimes somnolence. psg

2/20/14 psg

5/13/15 pul eval. dx osa.

9/8/15 va eval gw osa on cpap

10/14/15 dr. rossoff osa dx in 2/2014 but sxs suggest

present during

active service when knowledge of disease was more limited.

same time c/o

sxs of insomnia and paralyzed left hemidiaphragm.

b. Is continuous medication required for control of a sleep

disorder

condition?

[ ] Yes [X] No

c. Does the Veteran require the use of a breathing assistance

device?

[X] Yes [ ] No

d. Does the Veteran require the use of a continuous positive

airway pressure

(CPAP) machine?

[X] Yes [ ] No

3. Findings, signs and symptoms

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

Does the Veteran currently have any findings, signs or symptoms

attributable

to sleep apnea?

[X] Yes [ ] No

If yes, check all that apply:

[X] Persistent daytime hypersomnolence

4. Other pertinent physical findings, complications, conditions,

signs,

symptoms and scars

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

-------

a. Does the Veteran have any other pertinent physical findings,

complications, conditions, signs or symptoms related to any

conditions

listed in the Diagnosis Section above?

[ ] Yes [X] No

b. Does the Veteran have any scars (surgical or otherwise)

related to any

conditions or to the treatment of any conditions listed in

the Diagnosis

Section above?

[ ] Yes [X] No

c. Comments, if any:

No response provided.

5. Diagnostic testing

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

a. Has a sleep study been performed?

[X] Yes [ ] No

If yes, does the Veteran have documented sleep disorder

breathing?

[X] Yes [ ] No

Date of sleep study: 2/22/14

Facility where sleep study performed, if known: sleep

center hawaii

Results:

wt: 235# severe oss ahi: 74.1

b. Are there any other significant diagnostic test findings

and/or results?

[ ] Yes [X] No

6. Functional impact

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

Does the Veteran's sleep apnea impact his or her ability to

work?

[ ] Yes [X] No

7. Remarks, if any:

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

QUESTION:

Does the Veteran have a diagnosis of (a) sleep apnea that is at

least as

likely as not (50 percent or greater probability) incurred in or

caused

during service?

OPINION:

VETERAN WAS DIAGNOSED WITH OSA IN 2014 WITH POSTIVE SLEEP STUDY.

LAY PERSONS

REPORTS WERE NOTED HOWEVER SLEEP APNEA IS A DIAGNOSIS MADE

SPECIFICALLY BASED

ON DIAGNOSTIC CRITERIA WHICH WAS NOT MET UNTIL PSG WAS DONE IN

2014. IN THE

EVIDENCE PROVIDED, THERE WERE NO OTHER EVALUATIONS FOR SYMPTOMS

CONSISTENT

WITH SLEEP APNEA UNSTIL 2014. GIVEN THE LACK OF THIS EVIDENCE

PRIOR TO 2014,

IT IS LESS LIKELY THAN NOT THAT VETERAN'S SLEEP APNEA WAS

INCURRED IN

SERVICE.

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"10/14/15 dr. rossoff osa dx in 2/2014 but sxs suggest

present during

active service when knowledge of disease was more limited."

 

Is Dr Rossoff a private doctor?

If so would he be willing to prepare an IMO?IME for you?

 

He would need to follow the IMO criteria here at hadit. (see topic "Read First before getting an IMO"

"ONSET: 1991 COULDN'T SLEEP. GUYS IN TENT COMPLAINED OF LOUD

SNORING"

 

Have you attempted to obtain buddy statements of anyone in your unit who also bunked with you?

 

Buddys are easier to find then ever with Unit rosters, Facebook, etc etc and even by simply googling their names, then narrowing them down, if many similar names pop up.

 

It took me mere minutes about a year ago here to find a retired Army Chaplain that a vet needed for a buddy statement.

The Chaplain didn't remember him, unfortunately , but he seemed willing to seek other buddys when he saw how easy this can be done.

 

Do your personnel records ( 201 file) reveal any tardiness for duty stations or any sleepiness on the job?

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Geez, I almost forgot to add the most important thing I saw:

"Evidence Comments:

no active duty str available in vbms for review. files labeled

strs were

from post service"

WTF?

Do you have a vet rep and if so, what did he do about suggesting to get this error fixed?

Do you have a copy of your STRs?

 

 

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I forgot, this is regarding a friend of yours, you are not the claimant.

The buddy statements cans help him but

I suggest you print off all of this thread for him and also print this off too as to the IMO/IME criteria:

How the heck can the VA doc  say the SA was not found to be SSed if they didn't even have the STRs?

Does he have other claims pending?

Is this is first claim?

Has he tried to get his STRs himself at www.nara.gov?????

He could use that access for them and might get a letter instead of the SMRs (and he needs to request his 201 Personnel file as well) that states the STRs are at his VARO.....meaning they have somehow misplaced them...

Did he NOD this yet? What was the date of the denial?

Can he join us here?

 

 

 

 

Edited by Berta
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