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

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    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

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David Anaise MD for OSA secondary to PTSD


After Denials for OSA both direct and secondary to PTSD, this spring I decided to spend the money on a IMO and do the claim right.  I contacted Dr. Anaise and was told to send all my records, decision letters and $1500.  

After about a week I was emailed with a final IMO report that was around 40-50 pages.  It was excellent & well researched. Within 6 weeks of submitting the IMO with a supplemental claim OSA secondary to PTSD was approved.

Yes IMO's dont guarantee anything and they can be expensive but they are definitely worth it when you have been denied already and have nothing else to submit and someone like Dr. Anaise will always outweight the NP the VA usually has doing exams.

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After Denials for OSA both direct and secondary to PTSD, this spring I decided to spend the money on a IMO and do the claim right.  I contacted Dr. Anaise and was told to send all my records, decision

David Anaise MD is legit! I won my sleep apnea claim secondary to MDD using his IMO!

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I hired an attorney to handle my appeal based on the fact that the VA has just about ignored every piece of evidence I submitted.  I used the Ellis Clinic for an  IME and after consulting with my attorney he felt there are some things that Dr. Ellis missed when writing the IME.  He stated the IME was very good and fantastic when it comes to the rating I should get but the VA tends to want specific jargon and if they do the search on the document and don't see it (or ignore it) the claim gets denied.

I am using this attorney based on the recommendation from fellow vet who used them.  He was in the same boat that I am in. He used the Ellis Clinic and while the IME was good it missed certain keywords.  They got an IMO and used that with the Ellis Clinic IME to get him 100% P&T.  The IMO cost $1895 and covers 5 disabilities.

It is important for me to go this route because the VA examiners clearly ignore some factors.  They are supposed to help you with your claim but do not.  I am service connected for Asthma which can easily be used to connect to Sleep Apnea but the VA will not do it.  I have to do it myself.

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JK I think you are doing what you think is best and most comfortable with. Dr Ellis is very good and if you want to beef-up your chances, go right ahead. If that means going with a lawyer, so be it. Others may disagree, but you are the best advocate for your claim. Last thing you want to do is 2nd guess yourself, not get the legal help, and be denied again. Getting 3/4ths of a pie is a lot better than no pie at all. Wish you well.

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David Anaise MD is legit! I won my sleep apnea claim secondary to MDD using his IMO!

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      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
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      The Veteran is entitled to service connection for sleep apnea. The Board remanded the
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      care. Moreover, sleep apnea in particular is a condition that is often undiagnosed, as noted by the
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      claim merely because he does not have a treatment record for a historically underdiagnosed
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      basis of the examiner’s decision is based on a decisively faulty premise and is therefore
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      articles. The examiner’s failure to consider secondary service connection due to the veteran’s
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      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.
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      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
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      findings or does not contain sufficient detail. 38 C.F.R. § 4.2; see also Bowling v. Principi, 15
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      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”
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      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).
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      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).
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      in effect, supplying its own medical opinion, which is remandable error. See Colvin v. Derwinski,
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      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
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      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.
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      disability in service); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (noting that the
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      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)).
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      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
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      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).
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      evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F.
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      App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Schafrath v.
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      (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
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      examination reports. Savage v. Shinseki, 24 Vet. App. 259 (2011) (In Savage, the Court
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      24 Vet. App. at 270. Specifically, the Court held that when a private medical report is the only
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      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).
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      • 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
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