How is my NEXUS LETTER

[pctinc2001]

Please read and give me feedback please. Recently attended a BVA hearing, and she gave me some time to get my evidence for my sleep apnea claim. My Neurologist wrote me a medical opinion.

IMO Final.pdf Drs CV.pdf

[Dustoff1970]

I replied to your same question on June 13 with a detailed comment so that comment still is valid concerning your repeat question.  Your nexus opinion appears to be same one posted in your June 13 question.  I am done now so good luck.

[pctinc2001]

It was modified to see if it can be more direct.

[Dustoff1970]

Based upon my recent successful BVA appeals experience of OSA Sleep Apnea due to PTSD at 50% plus former and very recent VARO claims approvals for Gerd at 60% and Tinnitus at 10% and reading many hundreds of BVA and U.S. CAVC veterans court decisions plus U.S. Federal Appeals Circuit court decisions for over 30 years here is my opinion of your nexus statement and claim situation.

I believe that the nexus opinion you presented along with any other strong medical evidence and your arguments/contentions you should state in your claim you have a good chance of winning a BVA appeal for the following reason/s.

Very often in many many BVA and even CAVC court decisions the judges will conclude toward the end of their decisions that the C&P examiner and or VARO rater failed to render an adequate detailed rationale reason and basis explanation as to why they issued a negative opinion/decision against the vet's claim and therefore the judge will rule in favor of the vet using the equal balance of positive and negative evidence rule that the vet will receive the benefit of tie so to speak. 

In other words, as in my two appeal cases and many many other vets claims the examiner and VARO rater simply stated my OSA Sleep Apnea was due to my being overweight by 30 lbs and not due to PTSD or PTSD medications or anything else.  This is all they said and BVA called foul on their decisions.  Like many other vets claims the BVA said the examiner and rater did not give any explanation for why they ignored the positive evidence I submitted with my claim and at same time did not give a good explanation for their negative decision against me.   This BS occurs over and over again in VARO and sometimes even BVA decisions.

So therefore, a vet with a strong or limited amount of favorable medical evidence with or without a doctor's nexus opinion often wins his appeal as I did in 2019 when BVA compares vet's evidence and arguments against the poor quality negative decisions of VA rater and examiner.

You have to come to grips with the reality that even with a strong amount of positive evidence and nexus opinion the VARO raters may still deny your claim with the false statement of "No Evidence" or "No Records"

This is what happened to me, and I sucked it up and appealed knowing that I would win.  You have to do the same sport.  Appeal took a little over two years.

I will not be viewing any more comments on your repeat question.

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

[brokensoldier244th]

Typ-o "Sexually assault-ED"

Instead of "in conclusion", use "at least as likely as not". That is the verbiage from the ratings criteria, so it makes more sense to use it and give them what they want. Sometimes I have to try to parse out what the doc is actually saying with "in conclusion, and heretofore and forthwith......" etc LOL. Gives that English degree a workout, you know? 

Maybe list some of the ways you have tried to monitor and lose weight that didn't work. I did that, and managed to win that claim for OSA- it was a local appeal- but that was my fault because I jumped the gun and applied for it as soon as I got a Cpap rather than going through my notes and prior MyHealthVet and showing gradual weight gain, along with statements to my PCP periodically indicating that I was trying and failing. I had a chart generated from an app that showed calories and weight gain for like, a year, that was outside the normal parameters for someone that had similar calorie and activity intake. OSA is often caused by weight gain, so to combat the "lay off the doughnuts, fatty....." opinion, you can show that you tried to lose weight, or at least manage it, to no avail- even better, if you can show that you had the beginnings of sleeping issues at lower weights than what you were when you were prescribed, even better- it shows a progression. 

I also had a letter from my spouse, and an audio recording of my snoring and cessation of breathing during sleep. The audio coudln't be submitted but she described the 4 or 5 different dates over a month period pre-cpap that she recorded and how often I stopped breathing. I don't know how much it helped, but it was in there when I appealed. 

Otherwise, its solid. Maybe a few more sources, just so it doesn't look like they are cherry picked from the 'one' (I know there are more, but you know what I mean) that says what you need it to say. I can google a bit and find "one" also, but more than one, that means it was a repeatable result. In academic paper writing that lends more credence to a paper's results. 

Did YOU find those articles, or did your doctor? If YOU did, check with the doc and make sure they say what you think they say. Im not questioning your intelligence, but I have a Master's degree, and almost another one, and I can't count off the top of my head how many papers I was ready to cite for something I was writing in a literature review that I 'thought' said something but then after digging into the technical terminology found that it was really a lukewarm or even opposite conclusion from the title. Measure twice, cut once.

 

 

Attached is the letter my doctor wrote for my local appeal, and what I wrote as a cover letter to my submitted evidence, when I appealed my proposal for reduction (that I got 6 months after getting OSA service connected). 

 

 

 

EDITED of Apnea2012 appeal.pdf Copy of sleep apnea IMO .pdf

[dajoker12]

I rate disability compensation claims for a living. I see so many vets claiming sleep apnea secondary to ptsd; roughly 1 in 10 examiners actually gives a nexus for this. Invariably I defer the sleep apnea contention because every opinion that I’ve seen rendered thus far pertaining to that issue only focuses on the correlation and/or comorbidity rather than causation. Second, this is coming from a neurologist; this is not their area of expertise; a pulmonologist/sleep specialist would be a better option, however, a second medical opinion would behoove you. Third, the opinion does not have the correct verbiage. You can google this yourself. Fourth, BVA etc should only be the last option. I would vacillate between 0996 and 0995 forms; you need to submit new and relevant evidence ….. if denied, submit a peer reviewed journal article (just one); boom, claim is reopened and you get a new examination and medical opinion. If you get denied again, keep the claim continuously prosecuted and submit another journal article. Wash rinse repeat until you luck out with an examiner favorable to you. Claiming it as secondary to your back with obesity bridging the two will not work; an examiner would have to say that your back is the only reason for your weight gain…. even within the context of the issue supposedly being compounded by medication for ptsd. There is still exercise to do and what you eat ultimately determines this. You said that people witnessed gasping for air while you were sleeping; when? During active duty? How many buddy statements do you have? Are they written on the correct form? What is the gap in time between soldiers that you served with witnessing this and when you had a sleep study? 

 

[harry59]

I read your Nexus Letter and I have to say that I was a little confused. Your trying to connect your OSA to your PTSD, which is fine; but you also mentioned your back issue caused you to gain weight. Weight gain can also cause OSA. I would recommend referencing both PTSD and  weight gain as a likely cause for your OSA. Let the judge sort it out. Of course you'll have to use weight as a "bridge" to your OSA. That is referenced in VAOPGCPREC 1-17. I would print that VA memo out as evidence. 

Good luck!