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Filed a supplemental claim 12 days ago. Sent a current diagnosis from VHA of combat related PTSD (they diagnosed me with other stressor related disorder at 30%) and evidence of symptoms and interactions with police that should put me at 50 or 70% in like 50 pages of evidence via . Called 1800 number today to check on status and they said that it had already been decided for 10/20/2020 (tomorrow???) and no new C&P was given. Does this seem a bit fast to you? Does that mean its unfavorable or have you seen favorable decisions made that quickly?
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.
Forgive me if this has been asked previously. I am trying to navigate the site and did not find anything searching for it. I am currently service connected at 50 percent for depression, listed as MDD and Anxiety. Had a heart attack last year. STEMI. CAD diagnosis. In discussing lifestyle changes, I was asked what my stress level was as far as job, home life, leisure, prior health, etc. Stress is high and depression is thick and real. Was told that the depression and anxiety COULD be a contributing factor and Id want to be as stress free as possible. Applied for secondary heart attack, due to depression and anxiety with VA. had C&P exam. Saw doctor (contractor, QCV or something) for five minutes in which he said nothing to me. looked at computer screen, typed some things up, and excused me. Was later denied..."It is less likely than not that the veteran has a diagnosis of CAD with MI requiring stent placement that was proximately due to to MDD, anxiety, or OCD. There is no medical evidence that MDD, anxiety, or OCD cause CAD".
There are numerous studies performed by the VA, Mayo, and universities and agencies worldwide that connect CAD with depression as a cause and a symptom. Several rulings have already stated as much. I have requested the records from the C&P ( a month or more ago) and have yet to receive them. Deadline for appeal is coming up quickly. This new system sucks. I used to just go to the regional office in Lincoln and theyd let me walk out with any copies I needed. Question, Is it worth appealing on the grounds I have listed in this paragraph? And is there a way to get a doctor to look at my records on my own and see if they agree that its AT LEAST AS LIKELY that the two area linked?
I was denied for PTSD and migraines two years ago. I’ve been having sessions with a VA psychiatrist till now and found something interesting in my progress notes the other day.
The VA psychiatrist wrote this: Veteran is a 40 yo male with bipolar disorder, unspecified anxiety, and PTSD from military experiences and MST.
Does the statement above satisfy the Caluza elements?
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.”).
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).
broncovet posted an answer to a question,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.
Ztmiller8 posted a question in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC,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!
Joey Ross posted an answer to a question,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,
Picked ByJoey Ross,
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
Tbird posted a question in VA Disability Compensation Benefits Claims Research Forum,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.