Weight-Related Claims Denied ???

[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