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Supplemental claim denied

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Supply Guy

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So,  it’s like ground hogs day 4 years later for a disability.  In 2016, I filed a claim for my lumbar spine secondary to my knee. Claim was denied, did a NOD with an IMO, claim denied.  Submitted appeal and won because my IMO cancelled out the VA providers opinion.  Now, in Nov 2019 I filed a claim for Gerd, Hiatal Hernia, and Gastritis secondary to OSA caused by a TBI.  Claim denied, supplemental claim with IMO, denied.  I just submitted an appeal today.

So; what do the two denials for the second time with an IMO have in common? In both cases they went back to the VA provider who denied to original claim.   I think it’s unfortunate VA providers dig their heels in when their weak medical opinion is contradicted by a private physician.  I’ve read hundreds of appeals and the IMO almost always trumps a VA provider.  Has anyone else had this pattern happen to them? 

Edited by Supply Guy
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I think the VA has "tried every possible way" to deny me.  I have had over 12 VARO decisions, a half dozen BVA decisions and at least 4 trips to the CAVC.  So far. 

It really looks like we are going for CAVC number 5, because the VARO hasnt implementeed a 2012 remand and I will be filing a Writ of Mandamus, Pro Se, if they dont comply buy Jul. 11.

 

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Supply Guy said:

"Now, in Nov 2019 I filed a claim for Gerd, Hiatal Hernia, and Gastritis secondary to OSA caused by a TBI."

Do you have proof of the inservice TBI?  or Are you already rated for the TBI?

Do you have medical proof that the TBI caused the OSA?

Do you have proof that the GERD is medically secondary to the OSA which the TBI caused?

. " I’ve read hundreds of appeals and the IMO almost always trumps a VA provider." 

Did the IMO doctors follow the IMO criteria here at hadit?

Is it the same IMO doc for the second claim ,who helped with the awarded  claim?

This is a far more difficult claim then the first claim you filed.

If you can scan and attach here the decision and Evidence list, we can determine what rationale the VA had for the denial. Cover your C file # Name etc prior to scanning it.

Yes -a strong IMO or better yet---- in many cases, an IME  ( inperson Exam) can trump a lousy P & C exam result.

But this claim is one of the more complex claims I ever see and could require possibly more than one IMO/IME.

Nothing is impossible but the TBI has to be service connected first before VA will consider any secondaries to it. Did they give you a TBI exam?

 

We can see that answer in the decision if they did but I think maybe they possibly didn't.

In searching BVA decisions did you find any that awarded for OSA secondary to TBI or any of the disabilities you claimed, awarded as secondary to the TBI?

I found this one:

https://www.va.gov/vetapp19/files6/19149130.txt

The BVA rested heavily on this:

Additionally, the Veteran’s wife submitted a statement that the Veteran’s snoring was severe for many years following his service prior to his sleep apnea diagnosis. See November 2018 Sworn Statement. Also of record is a medical journal study that states that as many as 50 to 70 percent of patients with TBI may suffer from some form of sleep-disordered breathing (SDB) and that sleep apnea is one of the most common forms of SDB. See June 2015 Correspondence. 

 

"Additionally, the Veteran’s wife submitted a statement that the Veteran’s snoring was severe for many years following his service prior to his sleep apnea diagnosis. See November 2018 Sworn Statement. Also of record is a medical journal study that states that as many as 50 to 70 percent of patients with TBI may suffer from some form of sleep-disordered breathing (SDB) and that sleep apnea is one of the most common forms of SDB. See June 2015 Correspondence. "

I am sure there are more OSA secondary to TBI awards at the BVA.

You can get that awarded, in my opinion, with the same type of treatise or medical abstract, the above BVA vet used,and a buddy statement ,  from a buddy who served with you who could verify you snored loudly in service   and you might not need an IMO/IME for that, but you need to get the TBI service connected first.

A significant others's statement would help but I feel you might need more than that.

I have an article here under a search on Buddy statements and what they require.

Do you have a complete copy of your SMRs and inservice Personnel file?


 

Edited by Berta
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