Need to find appropriate DBQ for Insomnia, and CFR section for rating levels

[Otrgypsy]

I am trying to find the appropriate DBQ for organically based (physically caused) insomnia. I also need to find the CFRR sections for rating insomnia. My understanding is it goes up in increments of 10% from 10 -100.

[brokensoldier244th]

Are you evaluated for sleep apnea? Otherwise it would be mental issues if not organic, OSA if you are diagnosed, or it would be secondary to whatever organ system is causing the insomnia. Same with the CFR. OSA if dx, otherwise MH or whatever organic system is causing it. 

[Otrgypsy]

I'm not yet rated, but OSA is dx'd and significant. I have a doc in Peru that will help me with forms but I need to know whats the best way to address insomnia.

I have chemical brain injury. I believe the truest statement is that the insomnia and circadian rythym disorder are a result of the changes in the brain. There are many medical journals to support this. I don't have rotary brain at night or psych issues keeping me up. Its just the off switch that is broken.

There are "mental" dx's of anxiety and depression again caused by chemicals and brain changes. But its my understanding that the VA trys to lump insomnia with "mental" so as to wipe it out.

So what is the best DBQ to use to get it rated as Organic???

Edited March 26, 2022 by Otrgypsy

[brokensoldier244th]

The medical journals don't matter unless they apply to you, or to at least your condition or root cause i.e. tbi as an example. Medical studies are done with specific criteria in mind and if you don't meet the criteria for whatever he study participants were selected for then the studies findings don't directly apply to you- they are anecdotal, and not significant to you, unless your doctor says it is.

Insomnia isn't a separate condition under VA standards because it isn't a separate clinically diagnosable condition if its related to a mental health issue- insomnia presents under almost every mental health issue in the DSM V.  If its organic then you can do OSA or respiratory (if in general related to breathing). Many vets go straight for OSA for sleep issues and get denied because they don't have OSA. OSA is not  'not sleeping', or "can't sleep because my COPD/Deviated septum, whatever is exacerbating sleep patterns", its a clinically significant diagnosable condition with very direct etiologies and a specific diagnosis. 

You can file for it both ways if you want to, there is nothing stopping you. I see vet claims every day with a condition claimed 5 different ways for 5 different reasons, even if the reasons have nothing to do with what they are claiming. It all gets evaluated under the relevant DBQs for whatever they claimed, it just takes a lot longer. 

[Dustoff1970]

Actually reputable medical studies from accredited and recognized medical institutions do matter to the BVA and not the VARO in granting benefits to veterans appeals.  Here is a quote from the U.S. Court of Appeals from the Federal circuit.  Notice the text in BOLD and UNDERLINED type.

The Federal Circuit in Hensley v. West, in considering the use of treatise evidence to support the medical-nexus requirement of a well-grounded claim, stated:  "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, 212 F.3d at 1265 (citing Wallin, supra).  The Federal Circuit then held that on remand that treatise evidence "should be evaluated to see if it supports a nexus. . . sufficient to meet the low threshold of the well[-]grounded claim requirement." Ibid.

I have successfully used this Fed Circuit statement and opinion in some of my claims and appeals without a doctor's opinion connecting me to those studies along with treatment records, etc.  Although the VARO will usually choose to ignore this legally binding multi judge panel decision with stupid phrase "NO EVIDENCE" that they also say same thing about other positive evidence.

I have read numerous BVA decisions granting veterans their benefits on appeal where the board cited the above Hensley Fed decision that was issued a long time ago.  Google search will find you the date and full text of the decision easily. I do not do research for others.

I have used these studies published in specialty medical journals citing research results from Mayo Clinic, Harvard Medical School, Walter Reed Army Hospital, Fort Sam Houston Medical School, San Francisco VA, and many many others in my claims and appeals about PTSD, OSA Sleep Apnea, etc for secondary service connection issues and increases.

For some reason at another location there are yahoos, jokers that constantly tell vets these studies, research articles are not relevant unless a vet can get an MD to state formally that the study relates directly to that particular vet.  BS.  I suspect those folks are biased against vets like me representing myself successfully with the VARO and especially at the BVA and want everyone running to a VSO for everything who may be lazy, indifferent, dumb or just plain biased against the vet for some reason.

One must also have other types of positive favorable medical evidence such as treatment records, discharge summaries, test and lab results, etc. and not only rely on medical studies to support their claim as this would be most helpful also, especially on appeal to the BVA. But no although very helpful an MD's formal nexus statement is not always needed as I have successfully established nexus using Hensley and other evidence.

Vets should assume the VARO will ignore in many many cases all types of favorable evidence and deny their claims that they can then win on BVA appeal with the same evidence.  This has happened to me several times. SHISH.

This comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

Edited March 27, 2022 by Dustoff 11

[brokensoldier244th]

I have no problem with self representation/ I did it myself. In research, however, if you aren’t part of the study it’s not relevant to you. I know this because I’ve written some (not for medical things, but for other areas) while working in my masters area. If VA if different, that’s great. However, your cited text also says that the veteran is already diagnosed with the condition- an important part of Henlsey. Hensley doesn't establish that no plausible connection needs to exist other than the lay observation from the veteran and a pile of medical journal studies, and there are also CAVC limitations on the application of lay evidence towards establishing a nexus. 

 

The United States Court of Appeals for Veterans Claims (the Court) has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). The Court has, however, also held that medical treatise evidence "standing alone, discusses 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." Wallin v. West, 11 Vet. App. 509, 514 (1998) (citing Sacks, 11 Vet. App. at 317). The United States Court of Appeals for Federal Circuit (the Federal Circuit) held that "[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 [or her] case." Hensley v. West, 212 F.3d 1255, 1265 (2000).
 

Edited March 27, 2022 by brokensoldier244th

[Dustoff1970]

Well Hensley worked for me the way I used it sport and the BVA decisions I read don't lie so you use Hensley the way you want to and I will stick to my guns also.  It is up to each ADULT vet to decide on his own after weighing the opinions of you and I and others and do their own research.  Say hello to the joker and yahoos on that other location as I still visit their site to read some more of their misinformation along with the accurate stuff they put out. 

On some quarters and other locations there is an animosity against self represented vets like me, use of medical research studies that are very helpful and against paid for lawyers,  doctors opinions that are often very cheap in price and work for the vet.  This is due to small minded jealously on part of VSO, raters and others who cling together like.   See you at the rodeo

https://www.facebook.com/Vietnam-Dustoff-Medevac-112614780575067/?ref=pages_you_manage

BA Degree Finance & Tax Accounting, Former SEC CFP, Former Army Guard and Civilian helicopter pilot to Two Texas Governors, 

Advanced FAA and British CAA/Singapore Helicopter Airline Transport Pilot IFR License, FAA and CAA Helicopter Instrument Instructor Pilot License for all Weather Flight, etc. etc. 

Former volunteer Army medevac Pilot Vietnam with Purple Heart, CMB, DFC medal, AMs 1970,

Former volunteer UN civilian solo helicopter rescue pilot 1980 south China Sea (Saved over 1000 VN boat people)

 

Edited March 27, 2022 by Dustoff 11