Weight-Related Claims Denied ???

[harry59]

I submitted claims at the end of Sept of 2021. I just received, and read, the VA decision letter that I received today. The claims I submitted that were related to my already service-connected back conditions were approved. I am now at 80%. However, even though the VA confirms the diagnosis of all my secondary conditions that I submitted, all of my secondary claims (Obstructive Sleep Apnea (OSA), Hypertension, and Abdominal Hernia) that I submitted and associated to my weight gain, due to my SC back condition, were denied. I specifically stated in my veteran statements that I was connecting these secondary conditions to my SC back conditions, since I am effectively unable to exercise, using my weight gain as the "intermediate step," per the Walsh v Wilkie Decision. In my veteran statements I also referenced other VA Decisions where others have been granted service connection for the exact same medical conditions (using weight as their intermediate step) that I submitted?

 

In their reasoning for the denials (file attached), the VA mentions nothing at all about me using my weight as the "intermediate step" for my secondary claims. After reading this I wondered if they even looked at my veteran statements, or even took the Walsh v Wilkie Decision into consideration. I emailed my VSO about this and he said that the VA raters do not use court decisions when determining ratings because they are specific to that veteran. That just doesn't sound right to me. 

 

The letter also states that my claims for Insomnia, Depression, PTSD, and TDIU have been deferred for "Additional Development." What does that mean? 

 

So I guess my main questions are:  

1. Is my VSO correct, or did the VA totally ignore my veteran statements? 

2. Do I have a good chance at a Higher Level Review (HLR)?

3. What would be my best way to proceed? Attorney?

Thank you for your time. Any advice, replies, and opinions are greatly appreciated!

 

OSA Denial.pdf

[Mr cue]

I would appeal higher level if you don't have any more evidence.

 

It sound like you are on the right track to fight with the law from the Case you used.

I don't think you need a lawyer to do the higher level review.

the vso could help and should put the paper in for the review.

If not make sure you do it you have a year from the date on the decision.

To appeal the decision or request a higher level review.

I think it a Year on the higher level don't hold me to that one.

Now the good and bad.

The regional office doesn't like to address law.

The board might address the law the way they see it.

The us court of veterans appeal will address the law.

So the vso is partly right. My opinion

45 minutes ago, harry59 said:

using my weight gain as the "intermediate step," per the Walsh v Wilkie Decision

This let me no you are on top of your case good luck.

An keep up the fight

 

[pacmanx1]

 

1 hour ago, harry59 said:

In their reasoning for the denials (file attached), the VA mentions nothing at all about me using my weight as the "intermediate step" for my secondary claims. After reading this I wondered if they even looked at my veteran statements, or even took the Walsh v Wilkie Decision into consideration. I emailed my VSO about this, and he said that the VA raters do not use court decisions when determining ratings because they are specific to that veteran. That just doesn't sound right to me. 

What some veterans do not understand that even though you submitted a copy of BVA decision(s) that was similar to yours, DID you have an IMO stating that your service-connected disability caused your OSA or that your OSA is as least likely as not the result of your service-connected disability? The VA is looking for a medical opinion and a medical rationale about your condition and do not have to accept BVA decisions because they are not precedent. Now you may win on appeal, but you still need an IMO with a good medical rationale of how your conditions are related. In some cases, the VA can accept lay statements but in this particular case the VA will want a medical opinion from a medical specialist/doctor with a good medical rationale.

[harry59]

My Sleep Specialist doctor wrote me a Nexus Letter stating that it was more than likely that my OSA was caused by my weight gain due to my inability to exercise caused by my service-connected back condition. I also submitted her notes from my medical record. I would've thought that would be enough for the VA. 

[pacmanx1]

4 minutes ago, harry59 said:

My Sleep Specialist doctor wrote me a Nexus Letter stating that it was more than likely that my OSA was caused by my weight gain due to my inability to exercise caused by my service-connected back condition. I also submitted her notes from my medical record. I would've thought that would be enough for the VA. 

There are no guarantees with the VA, and you are going to have to file a disagreement.  

[Mr cue]

7 minutes ago, harry59 said:

My Sleep Specialist doctor wrote me a Nexus Letter stating that it was more than likely that my OSA was caused by my weight gain

I take you when to exam to.

So just do the higher level review and if they denied appeal to the board.

Don't worry about why they didn't look at your evidence.

You have evidence an some one will address it.

I would just write a statement addressing your evidence.

 

[harry59]

Sounds good. That's how I'm leaning too. Thanks. 

[Berta]

 I emailed my VSO about this and he said that the VA raters do not use court decisions when determining ratings because they are specific to that veteran. That just doesn't sound right to me."

As Pacman said,  the VA will not accept BVA decisions, because they are unique to the veteran who filed the claim.

BVA deciions do not tell us everything----I was disappointed that in  my BVA award ,they did not state all of my evidence, then again I had a lot of evidence, but some of it  could have helped other widows.

The VA however must abide by US CAVC precedent decisions.

Walsh V Wilkie ends with :

 

"The December 8, 2017, Board decision is VACATED and the claims are REMANDED for
further proceedings consistent with this opinion."

Nothing I see indicates this decision was setting "precedent"- do you know how the remand turned out? Maybe it is still in progress.

 

The 1 page part of the decision says:

"Some evidence supports your claim; however, we found other medical evidence
more persuasive because it is supported by a greater degree of medical confidence." (38 CFR 4.6)

Can you attach here the Evidence list and their full medical rationalem as to evidence that was "more persuasive."

 

 

 

https://veteranclaims.net/2020/02/25/walsh-v-wilkie-no-18-0495-decided-february-24-2020-disability-compensation-when-a-service-connected-disability-causes-or-aggravates-a-non-service-connected-disability-three-step-determinatio/

You mentioned you had an IMO/IME. Did theymention it at all in the decision or Evidence list?

Did the indeppendent doctor have a copy of the OSA C & P exam,so that he/she could fully knock down their rationale?

 

 

 

 

 

[Berta]

What a joke I LOLled when I read this :

"Some evidence supports your claim; however, we found other medical evidence
more persuasive because it is supported by a greater degree of medical confidence." (38 CFR 4.6)

YOu said your independent opinion was from a Sleep Specialist.

Was the C & P exam done by a 'sleep specialist'?

Have yougoogled the doctor who did the C & P exam to see what their expertise was?

Reminds me of when VA said one of my CUE claims ,

( it took 8 years for them to award it- an Obvious CUE ,because a different RO handled that as part of my AO IHD claim)

had been sent to a CUE 'specialist'. I think they meant the guy who refills their toliet paper dispensers- then again he probably could read better than the  RO claims people could.

 

Did he/she provide a Curriculum Vita to VA or any escerpts from mdical abstracts to bolster the opinion, or any information as to his.her expertise to opine on the claim?

Did he/she  follow the IMO/IME criteria here at hadit?

These claims can succeed :

 

"ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), is granted.

FINDING OF FACT The evidence is in relative equipoise regarding whether the Veteran's PTSD caused or aggravated his OSA through obesity as an intermediate step."

https://www.va.gov/vetapp21/Files10/21066291.txt

"ORDER

Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to his right knee disability, is granted.

FINDING OF FACT

Giving the Veteran the benefit of the doubt the evidence is sufficient to show that the Veteran's service-connected right knee disability aggravated or caused his obesity which in turn was caused by his OSA, which would not have occurred but for the obesity caused or aggravated by the service-connected right knee disability."

https://www.va.gov/vetapp21/Files8/21049896.txt

"ORDER Service connection for obstructive sleep apnea (OSA) is granted.

FINDING OF FACT The Veteran's service-connected unspecified depressive disorder with anxious distress and service-connected cold weather injuries to the bilateral feet caused the Veteran to become obese, and obesity was a substantial factor in the Veteran developing OSA; and his OSA would not have occurred but for the obesity caused by his service-connected disabilities."

https://www.va.gov/vetapp21/Files9/A21015901.txt

These grants are all from 2021, and although there are many denials for OSA it also can be associated to a myraid of other SC disabilities, I am sure.

These claims can be won- but they depend on a strong medical rationale from an expert in the field of OSA.

 

[broncovet]

Walsh is precedential:

Specifically, this is a panel decision (more than just one judge).  Single judge decisions are non precedenial, while panel and en banc are precedential.  Walsh stated:

Quote

Before BARTLEY, Chief Judge, and PIETSCH and TOTH, Judges.

 

[Berta]

Here are some medical articles etc that could bolster the IMO/IME opinion:

https://www.ahajournals.org/doi/full/10.1161/01.hyp.0000101686.98973.a3#:~:text=Among the risk factors for,and the risk of OSA.&text=Significant sleep apnea is present,of OSA patients are obese.

https://www.sleepfoundation.org/sleep-apnea/weight-loss-and-sleep-apnea

https://sleepcenterinfo.com/blog/does-sleep-apnea-cause-weight-gain-heres-what-you-need-to-know/

However your IMO/IME doctor would have probably some better links-

As VA cites 38 CFR 4.6 in the decision, ( that is my Favorite regulation)

a violation of 38 CFR 4.6 is a CUE.

https://www.law.cornell.edu/cfr/text/38/4.6

"§ 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

If we see more of what I asked you to attach, just about  anyone here, by now, can determine if a CUE occurred.

 

 

 

 

[Berta]

Broncovet- the CAVC case was remanded- how does that make it precedent setting?

What is the exact medical term for your back condition?

If we have more info we can help more.

Edited February 9, 2022 by Berta
lost entire post- with more info in it (see edit history)

[broncovet]

Great question, Berta.  While most CAVC's are decided "by remand" (not affirmed or reversed), I guess that Remand with multiple judges suggests that, in a similar case, its supposed to likewise be remanded.  

Sometimes, its hard to "parse out dicta" from a multiple judge/panel decision, so the VA can argue that statement was dicta.  

I think the lawyers want/get job security, by re arguing similar cases arguing it was dicta.  Then, I speculate, the judge decides if that citation was dicta.  

Remember, Howell vs Nicholson was also a remand, but, I think that decision wound up in M21-Mr regulations, even tho the M21 "greatly watered down" the judges opininion.  Instead of SMC S being granted "when the Veteran is unable to leave the home to earn an income", the M21MR, waters that down to mean "that the Veteran can leave the home for doctors appointments".  

"leaving the home for doctors appointments" is vastly different than "unable to leave the home to earn an income".  

The later, suggests every tdiu Vet should get SMC S, because they are not leaving the home to earn an income.  Its one of the many which will likely take additional precedential decisions to finally settle the matter.  

The courts have stated, "when congress intent" can be determined, that settles the matter.  So, one would think Howell's citation of "congress intent" should settle the matter, but VA, instead "interprets" this to mean he cant leave the home for anything but doctor appointments.  

Unfortunately, Chevron deference gives VA great latitude in interpreting their own regulations. 

[Berta]

This link Re: Walsh V Wilkie holds a OGC Pres Op which I believe is critical to these types of claims.

G.C. Prec. Op. 1-2017, at 1. 

This article blog  is not ,in my opinion, well written, so I dont know where this statement comes from-

maybe someone here can provide that VA OGC Precedent Opinion.

Walsh v. Wilkie, docket no. 18-0495 (February 24, 2020)
"HELD: OBESITY MAY BE AN “INTERMEDIATE STEP” BETWEEN A SERVICE-CONNECTED CONDITION AND A NONSERVICE-CONNECTED CONDITION WHEN THE SERVICE-CONNECTED CONDITION AGGRAVATES THE OBESITY. THE SERVICE-CONNECTED CONDITION NEED NOT CAUSE THE OBESITY."

 

https://abkveteranslaw.com/blog/tag/Walsh+v.+Wilkie

[pacmanx1]

Finally, we address whether obesity could qualify as an "intermediate step" between a service-connected disability and a current disability, for example, whether a veteran could establish entitlement to service connection for hypertension if a veteran's service-connected back disability causes obesity due to lack of exercise, which leads to hypertension. Under 38 C.F.R. § 3.310(a), disability which is proximately due to, or the result of a service-connected disease or injury is service connected. "Proximate cause" is defined as a '"cause that directly produces an event and without which the event would not have occurred."' VAOPGCPREC 6-2003 (quoting Black's Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing ·about the harm and the harm would not have occurred but for the action. Shyface v. Sec'yofHealth & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999) (citing RESTATEMENT (SECOND) OF TORTS§§ 430 cmt. d. and 433 cmt. d. (1965)). 15. A determination of proximate cause is basically one of fact, for determination by adjudication personnel. VAOPGCPREC 6-2003 and 19-1997. With regard to the hypothetical presented in the previous paragraph, adjudicators would have to resolve the following issues: (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing hypertension; and (3) whether the hypertension would not have occurred but for obesity caused by the service- 10. Executive in Charge, Board of Veterans' Appeals (01) connected back disability. If these questions are answered in the affirmative, the hypertension may be service connected on a secondary basis.6

VAOPGCPREC1-2017.pdf

Edited February 9, 2022 by pacmanx1 (see edit history)

[Berta]

THANK YOU PACMANX1 !!!!

 

[Rivet62]

2 hours ago, Berta said:

"ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), is granted.

FINDING OF FACT The evidence is in relative equipoise regarding whether the Veteran's PTSD caused or aggravated his OSA through obesity as an intermediate step."

https://www.va.gov/vetapp21/Files10/21066291.txt

"ORDER

Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to his right knee disability, is granted.

FINDING OF FACT

Giving the Veteran the benefit of the doubt the evidence is sufficient to show that the Veteran's service-connected right knee disability aggravated or caused his obesity which in turn was caused by his OSA, which would not have occurred but for the obesity caused or aggravated by the service-connected right knee disability."

https://www.va.gov/vetapp21/Files8/21049896.txt

"ORDER Service connection for obstructive sleep apnea (OSA) is granted.

FINDING OF FACT The Veteran's service-connected unspecified depressive disorder with anxious distress and service-connected cold weather injuries to the bilateral feet caused the Veteran to become obese, and obesity was a substantial factor in the Veteran developing OSA; and his OSA would not have occurred but for the obesity caused by his service-connected disabilities."

https://www.va.gov/vetapp21/Files9/A21015901.txt

These grants are all from 2021, and although there are many denials for OSA it also can be associated to a myraid of other SC disabilities, I am sure.

These claims can be won- but they depend on a strong medical rationale from an expert in the field of OSA.

 

This is gold.  THANK YOU.

[harry59]

Not sure of the medical terminology, but my lower back has bulging disc's, ruptured a disc a few years ago, DDD, disc narrowing, radiculopathy in both legs, and bone spurs. I've been told (in writing) by two doctors that I shouldn't be lifting more than 15 pounds. I'm also on SSDI because of my service-connected lower back and am currently waiting on my TDIU decision from the VA. My middle and upper back have about the same issues, but not as severe. 

Thank you for your replies. They've been very helpful. 

[Rivet62]

I am in the same status as you. I have SSDI for service-connected issues. I am waiting on my TDIU decision.

[harry59]

My Sleep Specialist did not have a copy of the VA doctor's examination of my OSA because my C&P was after my doctor appointment. I wonder if I should go back to my Sleep Specialist and have her do a DBQ. ???