Evidence to Submit?

[harry59]

Hello all,

It has been many years since I have gone through the VA claims process, so I have no doubt a lot has changed.  I am in the process of submitting claims for my secondary conditions.  In my Veteran Statements I am writing, I am referencing certain U.S. Court of Appeals Decisions (like Walsh v. Wilkie) and certain VA Citation Numbers (like Citation Nr: 1340261) that pertain to my secondary claims.

My question is...should I have my VSO upload and submit the Court Decisions and Citation Numbers as evidence in my file?  Or is it sufficient enough just to reference them in my statement, but not necessary to upload them to my file at this point?  I asked my VSO this question and he said I would only need to submit them if my claims go to the VBA.  I'm just looking for a second opinion from someone that has recently been through the process and want to make sure that I do things right the first time.

To give you a better picture of what I'm talking about, the paragraph below is from my Veteran Statement.  It reads:

"It is my contention that my service-connected disabilities, in particular those affecting my musculoskeletal system, have greatly impacted my ability to exercise, which has caused, or aggravated, my weight gain/obesity, which in turn has caused my Obstructive Sleep Apnea (OSA). My obesity, caused by my inability to effectively exercise or engage in any physical activity, is the intermediate step (the bridge), that connects my secondary condition (my OSA) to my service-connected musculoskeletal disabilities, as stated in the Walsh v. Wilkie decision from the U.S. Court of Appeals on Feb 24, 2020, and VA Citation Nr: 1340261. I also reference VA Citation Numbers 1426481, 1435836, 1447259, and 1536140 that show prior VA decisions linking OSA to a lower back condition (through weight gain). This should satisfy the requirement under 38 CFR 3.310(a) for service connection for Sleep Apnea on a secondary basis. I have also attached to my claim, credible sources that directly link OSA to weight gain/obesity."

 

Thank you for your time, and to all that reply!

 

[pacmanx1]

IMHO (IN MY HUMBLE OPINION) I would not bring up the subject of being obese. What you need is an IMO/IME ( INDEPENDENT MEDICAL OPINION/INDEPENDENT MEDICAL EXAMINATION) stating that it is at least as likely as not (50/50) that your OSA is caused by or resulted from your service- connected disability. Then give a good medical rationale. Or something like that it is as least likely as not that your OSA is caused by or resulted from your medications for treating your service-connected disability.

Also, you do not need case law until the VA denies your claim. If you can get an IMO/IME would be better. Don’t give the VA anything they can use against your claim.

[broncovet]

I would skip CAVC case law to VARO.  Instead, insure you have the Caluza elements:  Current diagnosis, and, in the case of secondary condtitions, you dont need an inservice event.  What you do need, also is a nexus, or doc opinion that your (current diagnosis) is at least as likely as not related to your primary condition(s).  

Most of the rest of this is "noise", and not relevent, "except" for your symptoms, once SC.  

I agree with your VSO, THAT "IF DENIED" and you appeal to the BVA (Board of Veterans Appeals), you can cite CAVC case law which supports your positition.  (Altho, if you have your caluza's documented, your appeal should fly.)

You dont have to be a lawyer and cite cavc unless you are denied.  

Keep it simple and get those Caluza elements documented.  

[harry59]

Thank you. That'll save me a little time.

I have done 2 sleep studies and already have a Nexus letter from my Sleep Specialist doctor linking my OSA to my weight gain due to my lower back condition. Hopefully I won't get denied. 

Thanks again!

[broncovet]

I almost forgot.  Unfortunately, with sleep apnea, a nexus does not always suffice.  Often you need a doctor statement that a cpap is "medically necessary".   

Yea, I know its stupid.  Doctors rarely write presciptions based on a commission they get from drug companies, at least not very long.  They write them that are "medically necessary".  But, VA may require the same.  If your doc did not say that, then you may be able to get away with it, unless, you draw a hard nose who makes you do everything "to the letter" before an award.  I found sleep apnea to be one of the most difficult to get SC.  

ONE reason:  Back when I was in the military, the term "sleep apnea" or CPAP was unheard of.  Not that people did not have it, but that it was not diagnosed.  

[harry59]

You're correct. The VA does want to see that now. So I had my Sleep Specialist put that my CPAP is a "medical necessity" in the Nexus letter she wrote for me. She also stated that I've been 100% compliant with it, but I'm sure the VA will check that on my C&P exam. 

Thank you!