Jump to content

  • veteranscrisisline-badge-chat-1.gif

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • 0

Heart Attack caused by Sleep Apnea MI by OSA

Go to solution Solved by broncovet,


Hello all,

I separated in 2007 and was awarded 80% for a number of things (listed below) after awards I have never made another claim.  Since I got out I've used the VA for some care for my eyes and CPAP gear but not for everything as I have private insurance.  Last month on Dec 21st I had a heart attack at 37 years old (turned 37 2 weeks before on Dec 11th) with 1 each 100% blockage requiring a stent.  I was not on cholesterol or BP meds and I receive no disability for any cardio related issue.  I had an electrocardiogram and my heart looks great with 100% function and my non VA cardiologist said I have to take plavix for a year and likely statins and BP meds for life but other than that no restrictions and no other damage.  I read that OSA causes issues including heart attack but I have had high normal cholesterol  since I was active duty (ldl 150ish, tri - 100+, hdl 40s, total 210+) and  normal BP always.


My questions are:

1 - Can I tie the MI event to OSA?  And if so can it cause the MI even if my BP and Cholesterol are not really considered high?

2 - If I have 100% function and no damage is it worth the effort?





left knee strain


left ankle strain status post talar break


right ankle strain


multi-level degenerative disc disease, thoracolumbar spine (claimed as lumbar and thoracic back conditions)


bilateral keratoconus


tinea versicolor


allergic rhinitis (also claimed as sinusitis), status post septo-rhinoplasty





central sleep apnea




Link to post
Share on other sites
  • Answers 7
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

  • 0
  • Moderator
  • Solution

Yes..there is a risk.  The VA has implemented a plan to reduce all Vets who apply for an increase in order to stop Veterans from seeking an increase, thus reducing their workload and backlog, as well as saving money to fund the "next pork barrel" hospital.  Just kidding, tho suprisingly we see this myth propogated by VSO's, VA employees, and even some Vets advocates.  

However, knowledge is power, and you are gonna get that right now!  

The VA has "specific criteria" when they can reduce you, and, if you have been rated over 5 years or are P and T, then they can not reduce you UNLESS you not only Actually improved, but did so while working.  

The VA can not reduce you for applying for an increase, this is NOT a criteria for reduction!  Of course, if you did "actually improve under ordinary condtions of life", then you probably wont be applying for an increase, now would you?  Gee, you get better so to get even with VA you apply for more benefits?  How often is that gonna happen.  

It IS true that VA looks at your whole file when you seek an increase, however, the VA does that anyway, always on the lookout to save money by cutting benefits, especially by Vets who have improved and no longer need benefits, such as they are able to go against all odds, cure incurable diseases and go back to work full time!  

Incredibly, some rather famous Vets did just that, but were still not reduced!   John Mc Cain, Max Cleland are both senators collecting 100 percent and working as a US Senator.  Tammy Duckworth, a 100 percent disbled Vet, not only worked for VA while collecting her 100 percent, but is a big, big shot.  I hear she got out of VA and joined the 2 above, who are 100 percent and are into politics.  

The facts are that VA can/does reduce Vets who improve, but that happens independently of whether or not they apply for an increase.  

While its true, when you seek additional benefits, many eyes will be on your claim, the fact remains that VA has laws, and these prevent reducing Veterans who dont meet the applicable "improvement" criteria as follows:

(Note the 5 year protections only apply to P and T Vets, or those who have been rated 5 years or more):

3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[ 26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993]
Link to post
Share on other sites
  • 0
  • Moderator

Yes, you can tie it to OSA, provided that a doctor writes in your records that your heart attack was "at least as likely as not" due to OSA (which is service connected).  

You need that or a similar nexus.  

As far as whether or not its worth it, the stakes "may be" more than money.  

You see, if you die from a "service connected" disoder, you widow (wife) can get DIC, which would be a very very big deal to her, worth about 1200 to 1500 per month for the rest of her life.  If you dont die from a service connected disorder she wont get DIC, UNLESS you have been 100 percent for 10 full years, then it does not matter your cause of death, your wife will still get DIC.  

I will presume you are unlikely to pass from OSA, but a heart problem can be very bad.  Also, even tho maybe you dont have problems with your heart now, you will be eligible for an increase if it gets worse.  


Link to post
Share on other sites
  • 0


Thank you for your response, I am starting to do more research as your points on the spouse benefit are significant to me regardless if I get much of a rating now. 

One concern I have is I don’t want to lose the rating I have, is there a risk to that?  I had not been using the CPAP nightly until 2 years ago when I started putting it on every night but normally rip it off.  8 months ago VA replaced my CPAP (which was also the first time I went to them regarding my sleep apnea) and this one tracks how many hours I use it and I don’t reach the 20 days in a 30 day period with at least 4 hours use needed to be considered effective treatment but this is improving.

None of my disability items have improved and in fact my back, my eyes and my allergies (moved to San Antonio and the ceder is death around here) are all worse...

Link to post
Share on other sites
  • 0

Did your Cardiologist opine as to a possible etiology of the MI? What's the Date of your CSA DX? Are you on BiPAP with supplemental 02?

Back in 2010, my non VA Sleep Neurologist put the "More Likely than Not, MSA was linked to my 2006 CAD B-Pass surgery in his Treatment Notes. 2 months later I got the Secondary 50% Award.

2016 VA heart Echo indicated low end Pulmonary Hypertension had developed. Filed an FDC SA Secondary right away, within 2 months got a PH SC 0%, but  my SA got bumped from 50 to 100% with an SMC S (1) award about 6 months later.

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

  • Ads

  • Ads

  • Similar Content

    • By 1454th Solider
      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.
    • By shrekthetank1
      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
      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)-
      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
      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).
    • By brokensoldier244th
      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? 

    • By JonathanAD
      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.  

    • By Al329
      Anyone use a private company for a home sleep study?  If so who did you use?

      Reason, I am currently in a remote location and would be a reach to travel to any VA sleep study.

  • Ads

  • Our picks

    • Post in New BVA Grants
      While the BVA has some discretion here, often they "chop up claims".  For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.  

      I hate that its that way.  The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.  
    • Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!

      My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.

      Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
        • Like
      • 13 replies
    • I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even  reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and  nothing about stressor,
    • This is the latest Compensation & Pension (C&P) Clinicians Guide dated 20180719. The only other one I've seen is dated 2002, including the one on this website and the VA website. I got this from my claims agent, who got it from the VA.

      VA Compensation & Pension (C&P) Clinicians Guide 2 Final Corrected 20180719.pdf
        • Thanks
        • Like
      • 12 replies
    • I don’t say thank you enough to all of you...
      You, yes you, are the reason HadIt.com has remained a resource-rich resource. Thousands come each month to read, ask questions, or to feel a sense of community.

      Last month June 2020, we over 50k visitors they viewed over 160k pages. Veterans and their advocates, spouses, children, and friends of veterans come looking for answers. Because we have posts dating back 15 years and articles on the home page, they usually can find an answer or at least get pointed in the right direction.

      You all made that possible. Thank you.
        • Like
      • 8 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
  • Create New...

Important Information

{terms] and Guidelines