Just found out today Denied Sleep Apnea Secondary to PTSD - Disappointed

[GulfWarVet1990]

I just checked VA.gov and ebnefits today (letter not sent) and noticed under my disabilities I was denied service connection for OSA secondary to ptsd.

Talked with my VSO (they can view the letter) - they told me the VES examiner opine carried more weight than my IMO.  The VA examiner stated sleep apnea is not secondary to ptsd and OSA physiological where PTSD is psychological. 

I have three options- 

1. Submit a Supplemental with new evidence - statements, new evidence. 
2. Request an HLR
3. Appeal to Veterans Law Judge - (honestly prefer not to go this route due to the length of time)

I am sc for Gulf War presumptive conditions such as chronic rhinitis and sinusitis, I was wondering if I should resubmit sleep apnea as a secondary condition to either of the two. 

SC for sleep apnea is not easy.  I am disappointed but not giving up. 

BTW - I have other conditions that were not adjudicated - submitted a NOD and requested DRO - that VA just found and is now working on.  Had a C&P exam with VES last week (that's another story).

Any advice from "Veteran" Veterans on this site is welcomed.  Thanks. 

 

 

 

 

[broncovet]

Yea, there is a temptation to use "another Regional office decision maker" to save the often long wait at the BVA.  I get that.  My advice is to "resist that temptation" in most circumstances, because, "unless you have new relevant evidence", a different outcome is often precluded because of Res Judicata:

Quote

Res judicata (RJ) or res iudicata, also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) relitigation of a claim between the same parties.

 

Angelo Gambiglioni, De re iudicata, 1579

In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.^[1]

The doctrine of res judicata is a method of preventing injustice to the parties of a case supposedly finished but perhaps also or mostly a way of avoiding unnecessary waste of judicial resources. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion.

In other words, you cant just "keep applying at the Regional Office" until you find a highly Veteran favorable decision maker.  

Thus, you need to kick it up a notch.  While I understand some have gotten a favorable outcome with HLR or SCL in your circumstances, its mostly a waste of YOUR time and judicial resources.  

A HLR "specifically excludes" new evidence, and there would need to be a compelling reason as to why an HLR overturns a previous decision.  

    "If you have something new to show VA" (something that is "not" your opinion) then go for it.  If you review the file, and certain evidence was not considered, then you could reopen using 38 CFR 3.156.  

[asdf]

In order to claim sleep apnea as secondary to another condition, a medical professional needs to have made that conclusion. 

[broncovet]

Correct, ASDF.  The Caluza elements are "shortened" to 2 "when you are already SC" for the primary condition.  

In other words, you need a current diagnosis, and a doc opinion (nexus) that your xxx condition "is at least as likely as not" related to your already sc condition.  

[broncovet]

Gulf War VEt:

    My advice is to wait on the decision AND review your file, especially paying attention to these 3 things:

1.  Did the decision, in the evidence section, omit any key evidence?

2.  What was the Decision's "reasons and bases" for conclusion, and do you have evidence to refute their reasons?  

3.  Read your nexus statement(s).  Did they meet VA's criteria?  Here is what you need for a good nexus.  

    a.  Competent doctor, (an audiologist, or other medical professional will suffice, it need not always be an MD.). experienced in diagnosing and treating your conditions.  Best is to include the doctors CV, demonstrating he is an expert witness fully competent and capable of diagnosing and treating your condition.  

    b.  The examiner states "he reviewed your medical records". 

    c.  The nexus is in a format suitable for VA.  It should not say, for example, your condition "could be" (or may be) related to service.  Instead, it should be in the format "at least as likely as not" related to an in service event. 

    d.  The examiner should include a medical rationale as to "why" he made said opinion.   

    e. The exam or opinion "should be at least as thorough" as the exam you are trying to refute.  Example:  If your doc provides an xray or other medical tests to support his opinion, this should suffice.  

     Its true the BOARD can use one docs opinion over another, but they must state in reasons and bases as to why they did so.  

[GulfWarVet1990]

1 hour ago, broncovet said:

Correct, ASDF.  The Caluza elements are "shortened" to 2 "when you are already SC" for the primary condition.  

In other words, you need a current diagnosis, and a doc opinion (nexus) that your xxx condition "is at least as likely as not" related to your already sc condition.  

Thanks broncovet, yup my IMO was from a psychologist and disability claim expert, the IMO included research, and stated "is at least likely as not" related to PTSD.