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

[pacmanx1]

Really not trying to say that I am right, and you are wrong, just trying to help the veteran.

Your post was correct just a little misleading. As stated, it would just make it a little harder. It is bad enough to try and get some doctors/physicians to get involved but try to make them understand that it is just possible at least 50/50 probability would do. 

[deedub75]

The IMO that you have could be inadequate if all the bases aren't covered. 

1. It has to state that the veterans pertinent medical records were reviewed.

2. The IMO at a minimum needs to say "at least as likely as not." 

3. Rationale on the medical opinion needs to be in there. Just can't give a medical opinion with rationale. 

4. The doctor's credentials must be listed as well. 

The only one time I needed an IMO, I asked my personal orthopedic surgeon if he'd support me because a VA NP kept saying that an abnormal gait could not cause knee and back issues. My orthopedic surgeon said that was just plain wrong. I wrote the IMO for him and just had him sign it, and the claims were finally granted. 

 

[JKWilliamsSr]

1 hour ago, pacmanx1 said:

Really not trying to say that I am right, and you are wrong, just trying to help the veteran.

Your post was correct just a little misleading. As stated, it would just make it a little harder. It is bad enough to try and get some doctors/physicians to get involved but try to make them understand that it is just possible at least 50/50 probability would do. 

I understand.  My actual intent was to provide the minimum necessary.   That is why we are all here.  To point out mistakes to make it easier to understand.  Fighting the VA is hard enough.

[Vync]

@GulfWarVet1990Sounds like your VA examiner never took a college-level psychology course. Did your IMO describe how psychological issues can manifest themselves physically? Looks like the VARO failed to consider relative equipoise.

I have noticed in my own claims and from reading posts from others, in many cases VARO staff tends to side with the VA examiner too often. It's like they are supposedly being told that they cannot make a medical decision, so just take the VA examiner's opinion over that of a non-VA opinion. I had this happen a couple of years ago after filing a heart attack claim. The VA NP opined against SC despite having a strong IMO from a non-VA specialist. The person who worked my supplemental simply took their examiner's word and even failed to notice that they opined on a condition I never claimed and was not even related to my heart. That's why it is very important to get a copy of the VA's C&P findings and review them for stupid mistakes like this. Of course, I filed an HLR and asserted CUE by opining on the wrong decision. The DRO saw my non-VA specialist was very thorough, acknowledged the error, and granted SC.

It looks like BVA cases are now taking much longer than ever before unless a vet has a reason to justify advancement on the docket. From recent posts by other vets, they are still working appeals from 2018. Mine was submitted a year ago and I still do not have a docket number, so I estimate it will be reviewed in 2024 or later. BVA closes the door to new evidence just like HLR and get into a potentially very long line.

My supplementals and HLR each took about 4 to 5 months, but that was pre-covid. For my heart claim, I opted to go supplemental first in hopes they would get it right in just a few months. After submitting several CUE claims, one was granted at the supplemental level, another granted at the HLR level, and another denied at HLR because someone failed to read my evidence and is currently in the appeal line at the BVA. That just shows that you can get a mixed bag of results regardless of which path you choose.

Edited March 31, 2022 by Vync
Added info about review/appeals (see edit history)

[Vync]

@broncovetI remember the days when we could request de novo review which guaranteed it was reviewed by someone else. Now, it's just supplemental, HLR, or BVA. Of course Berta would have stated CUE can be filed at any time, but based on my results in filing CUEs, half the time the VA gets those right and the other half they spend trying to figure out if you submitted on the correct form (which there is none for CUE). Gotta love it... 

 

[Gulfvet45]

I did an appeal on this time and again. The problem is that the VA examiner does not account for the medication you are taking for the treatment of your PTSD that is known to cause the weight gain might be something your other opinion accounted for.  The RO also needs to account for the the general council opinion on obesity Bing the linchpin between the service connected condition and the secondary condition of sleep apnea.

read this link and appeal to the Board as most of these claims are won at the board and or the courts and not the RO level.

https://ngwrc.org/updates.htm 

[Dustoff1970]

Very well said and correct GulfVet45. Many many BVA decisions I have read support your statement and my own appeals.  Cheers

[GulfWarVet1990]

On 4/7/2022 at 12:58 PM, Gulfvet45 said:

I did an appeal on this time and again. The problem is that the VA examiner does not account for the medication you are taking for the treatment of your PTSD that is known to cause the weight gain might be something your other opinion accounted for.  The RO also needs to account for the the general council opinion on obesity Bing the linchpin between the service connected condition and the secondary condition of sleep apnea.

read this link and appeal to the Board as most of these claims are won at the board and or the courts and not the RO level.

https://ngwrc.org/updates.htm 

Hi Gulfvet45, thank you for the information, I received my letter today, the VA sided with the VA examiner "the medical opinion was more persuasive than you private physician's opinion." Please note I submitted an IMO from a PsyD specialist re: OSA/PTSD. 

The also noted "the VA examiner's opinion provided more weight".

What is the best approach or appeal route to win my claim? And what additional evidence will I need to do so. Thank you.

 

 

 

[Dustoff1970]

Gulfwarvet 1990 I won a recent OSA Sleep Apnea with CPAP appeal from the BVA due to several factors such as

1. A great deal of favorable medical and non medical evidence I provided in claim and appeal to support my claim that my OSA was secondary to my long term Vietnam PTSD and PTSD medications including providing recent research medical studies, treatise, reports, etc. from prestigious places such as Mayo Clinic, Walter Reed, Cleveland, others, showing a strong association cause and effect of OSA due to PTSD in combat vets. 

Many BVA decisions have granted vets OSA due to PTSD based on this evidence alone and with and without a doctor's nexus opinion. I have read these decisions and BVA often says the VA examiner's negative opinion was inadequate or defective.

And like me many of these vets have been overweight for many years.  They also presented successful arguments with studies that their weight gain was due to long term use of PTSD strong medications

2. VA Doctors and nurses notes on diagnosis of my OSA at the VA Sleep Clinic that stated my long term PTSD and PTSD medications contributed to my OSA and it's severity including on Axis III.

3.  A 2019 22 page nexus opinion statement from Dr. David Anaise stating my OSA is due to my PTSD and VA service connected Agent Orange Heart IHD/CAD Ischemic Disease.  He gives a detailed explanation rationale for his opinion along with other medical references to support his MO.  He states truthfully he has reviewed my Army, VA and private medical records from 1970 to 2019.

A key statement he made was that all Obstructive Sleep Apneas have mixed components of central and obstructive apneas and that it is the brain misfunction sending signals to the other areas that cause this disorder due to PTSD mental effects.  This is a Non quote and a only a close paraphrase by me. 

He included his long established credentials of a 30 year MD surgeon and expert on veterans disability claims including book author on same subject. Many BVA favorable decisions for the vets have cited him by name or initials.

Here is an example of outright deliberate lying BS put out by the administrators of another  location (not this forum). 

"If you have OSA vs Central sleep apnea the link to PTSD is shaky at best. Any opinions are likely going to be challenged by the VBA requesting a c&p and they'll likely give better supporting evidence than anything you pay out of pocket to get".

What they never tell the vet is he or she stands a very good chance of winning their claim on appeal to the BVA who in my case also said the VA examiner's negative opinion was "inadequate" and on appeal of another issue the BVA said the same examiner's negative opinion was "defective".

Do not give up hope and be discouraged by other  misinformation from anyone.  I know their motives for such BS.

"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."

 My comment is not legal advice as I am not an attorney, paralegal or VSO.

 

Edited April 14, 2022 by Dustoff 11 (see edit history)

[GulfWarVet1990]

Thanks Dustoff11 - I am going to move onward and appeal. Dr. Todd Finnerty wrote my IMO, he did not have much to go on viewing my records, no evidence of sleep apnea in my medical records but a recent diagnosis and sleep test results from a non-VA physician. He is willing to write a rebuttal, as of date have not received a copy of my C&P exam.  

[Dustoff1970]

Gullfwarvet 1990 In your request for appeal via NOD and/or BVA appeal make a statement that you believe the C&P examiner's negative opinion was inadequate and/or defective for one or all of the following reasons.

1.  The examiner offered no detailed explanation rationale statement for his negative opinion and/or rejecting your doctor's IMO.

2. The VARO reason and basis for denying your claim was inadequate as the rater offered no detailed rationale explanation  for denying the claims and the VARO ignored, rejected your doctor's IMO without providing explanation why his IMO was not adequate or ignored.  

3.  Both the VARO rater and examiner ignored or found inadequate without detailed explanation your other favorable medical and non medical evidence to support your claim.

4. You and/or your doctor should make positive explanation statement why you believe your evidence and his/hers nexus opinion is more adequate and creditable than the VA examiner's and rater's negative opinions and reasons if any.  Key word to use is CREDITABLE.

This is just a few of the many reasons you can rebut both the VA examiner's and rater's negative opinion and decision against you.

Standby your own doctor's opinion till the end.

Many mean minded or lazy paid VSOs do not want veterans to know the above information as the VSOs would have to do a lot more work in preparing rebuttals to VA denials and/or  also more work in appealing vets claims. They should be fired and sent to rest with the worms.

Prior favorable BVA decisions cannot be cited or used as proof to help you with your claim and appeal however the BVA information in those decisions such as above can be very valuable for you to use in your own arguments for the BVA or VARO claims, and appeals. Works for me and there is a ton of good stuff in those BVA decisions (a regular gold mine) I will soon send you by private msg a few of these BVA decisions granting overweight vets like me OSA due to PTSD and PTSD medications.

In most favorable BVA decision the judge will consider and weigh the evidence and the opposing opinions of VA examiner, rater and the vet's own doctor's MO plus other evidence and give benefit of the doubt to the vet or find the vet's argument and IMO, evidence in equipoise and therefore grant the vet his appeal.

Good luck and I will see you at the rodeo.

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

 

Edited April 15, 2022 by Dustoff 11 (see edit history)

[Gulfvet45]

On 4/13/2022 at 9:06 PM, GulfWarVet1990 said:

Hi Gulfvet45, thank you for the information, I received my letter today, the VA sided with the VA examiner "the medical opinion was more persuasive than you private physician's opinion." Please note I submitted an IMO from a PsyD specialist re: OSA/PTSD. 

The also noted "the VA examiner's opinion provided more weight".

What is the best approach or appeal route to win my claim? And what additional evidence will I need to do so. Thank you.

You doctor needs to address the fact that the weight gain form the medication you are taking for all of your service related injuries.

 

 

 

On 4/14/2022 at 6:39 PM, GulfWarVet1990 said:

Thanks Dustoff11 - I am going to move onward and appeal. Dr. Todd Finnerty wrote my IMO, he did not have much to go on viewing my records, no evidence of sleep apnea in my medical records but a recent diagnosis and sleep test results from a non-VA physician. He is willing to write a rebuttal, as of date have not received a copy of my C&P exam.