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MrStryker

Appeal direct service connection with secondary evidence

Question

My VSO let me know that my OSA appeal was denied.  My original claim was a direct service connection. 

I read the sleep apnea field manual from Chris Attig and appealed the decision. 

On appeal I stated the OSA should be secondary to PTSD and sinusitis. I obtained an IMO from Dr Anaise and a DBQ with the at least as likely as not and medically necessary (CPAP) statements from my psychiatrist. 

My question is on appeal can you submit evidence to make it a secondary condition or does it need to be filed as secondary from the beginning? 

I haven't received the RAMP appeal denial letter yet.  Also is there a section in the 38 CFR regarding secondary conditions with an original direct service connection claim? 

Edited by MrStryker
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  I'm sure someone more familiar with the RAMP process will chime in, but assuming that you can submit evidence at all, (and I'm pretty sure you can, at this point) by all means you can and should address the secondary and even aggravation aspects of service connection as well as direct connection.

  The C&P examiner and rater actually should have addressed all three "prongs" of service connection from whatever you have submitted, but I can tell you that in my case, it apparently didn't happen.  The BVA pointed that out repeatedly in granting most of my appeal, stating repeatedly that the C&P examiners and rater(s) "failed to address the aggravation prong of secondary service connection".  

  If you have something that specifically supports any of these three "prongs", you definitely want them to have it.  It is my understanding that it is not supposed to hurt your claim even if you try to claim the same condition on all three prongs.   The person(s) deciding your claim or appeal is supposed to be looking for a way to grant your claim.  The evidence may be too weak for them to grant "direct", but they will then re-examine the issue from the other two aspects.  

Hopefully the opinions you want to submit explain the rationale behind the suggested nexus (I'd imagine they do, but just be sure.)  Just saying they believe the OSA is caused or aggravated by your other issues isn't good enough, there need to be explanations of why and how there's a link.  I'm pretty sure Dr. Anaise's opinion and evidence will cover that nicely, it sounds like he knows what the process needs.  Good luck getting whatever rating you deserve!

Edited by acesup
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17 minutes ago, acesup said:

  I'm sure someone more familiar with the RAMP process will chime in, but assuming that you can submit evidence at all, (and I'm pretty sure you can, at this point) by all means you can and should address the secondary and even aggravation aspects of service connection as well as direct connection.

  The C&P examiner and rater actually should have addressed all three "prongs" of service connection from whatever you have submitted, but I can tell you that in my case, it apparently didn't happen.  The BVA pointed that out repeatedly in granting most of my appeal, stating repeatedly that the C&P examiners and rater(s) "failed to address the aggravation prong of secondary service connection".  

  If you have something that specifically supports any of these three "prongs", you definitely want them to have it.  It is my understanding that it is not supposed to hurt your claim even if you try to claim the same condition on all three prongs.   The person(s) deciding your claim or appeal is supposed to be looking for a way to grant your claim.  The evidence may be too weak for them to grant "direct", but they will then re-examine the issue from the other two aspects.  

Hopefully the opinions you want to submit explain the rationale behind the suggested nexus (I'd imagine they do, but just be sure.)  Just saying they believe the OSA is caused or aggravated by your other issues isn't good enough, there need to be explanations of why and how there's a link.  I'm pretty sure Dr. Anaise's opinion and evidence will cover that nicely, it sounds like he knows what the process needs.  Good luck getting whatever rating you deserve!

Thanks do you know the regulation that shows that they're supposed to look at the three "prongs?"  I know with RAMP they're supposed to put the evidence used for and against.  I didn't receive a C&P Exam for my appeal.  I used the supplement track and submitted the sleep study, Dr. Anaise IMO and DBQ from my psychiatrist as well as articles connecting PTSD to OSA, and BVA decisions as well.

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In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be 'undebatable' and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

 

Edited by MrStryker
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I got my RAMP decision letter for my OSA denial.  In a nutshell,

"The evidence does not show that sleep apnea is related to the service-connected condition of PTSD personal trauma, alcohol use disorder, nor is there any evidence of this disability during military service. In general, there is not a relationship of sleep apnea to post traumatic stress disorder. Sleep apnea involves the respiratory system and the airway where as PTSD is a mental condition. However, all cases are different. If you have a medical opinion from a physician stating that your sleep apnea is caused by PTSD with a reasonable rationale, please submit it and we will reconsider."

Not mentioned even on the evidence list was my IMO.  The only mention was the DBQ from my psychiatrist which gives an opinion relating PTSD and sinusitis, which are both service connected.  The IMO addresses PTSD and sinusitis.  The evidence was submitted using E-Benefits.  The legacy system doesn't allow uploads of documents but RAMP does.  I'm not sure if the rater didn't check the upload folder?  Should I do another supplemental and resubmit my IMO?  I also got an IME from Dr. Ellis that was not part of the original appeal.

Edited by MrStryker

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