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]

Good comment

 

Edited July 5, 2022 by Dustoff 11

[Rattler]

On 7/1/2022 at 8:39 PM, 63Charlie said:

 

 

 

Isn't it odd that not a single one of my victories at the CAVC mention anything about those BVA decisions being Black's Law Dictionary defines “arbitrary and capricious” as “[a] willful and unreasonable action without consideration or in disregard of facts or law.” Admittedly, this is a tough burden for the challenger.s?

If my memory serves me, I think my legal eagles won because the BVA erred in the reasons and bases requirement part of their decisions.

An error would give the Courts Jurisdiction  “arbitrary and capricious” does not.

Black's Law Dictionary defines “arbitrary and capricious” as “[a] willful and unreasonable action without consideration or in disregard of facts or law.” Admittedly, this is a tough burden for the challenger.

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What makes a decision arbitrary and capricious?

 

When a judge makes a decision without reasonable grounds or adequate consideration of the circumstances, it is said to be arbitrary and capricious and can be invalidated by an appellate court on that ground. In other words there should be absence of a rational connection between the facts found and the choice made.

 

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What is the arbitrary or capricious test?

The arbitrary-or-capricious test is a legal standard of review used by judges to assess the actions of administrative agencies. It was originally defined in a provision of the 1946 Administrative Procedure Act (APA), which instructs courts reviewing agency actions to invalidate any that they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The test is most frequently employed to assess the factual basis of an agency's rulemaking, especially informal rulemakings.[1][2][3][4]

 

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Background

The Administrative Procedure Act (APA) makes final agency decisions (such as those made during rulemaking or adjudication) subject to judicial review. The APA provides for judicial review for persons and parties "adversely affected or aggrieved by agency action within the meaning of a relevant statute" or suffering "legal wrong because of agency action."^[1][2][3]

The APA establishes two standards of review for courts assessing the actions of administrative agencies: arbitrary-or-capricious and substantial evidence. The latter standard is required by the APA in cases involving decisions made through the formal rulemaking or formal adjudication processes. The arbitrary-or-capricious test, while applicable to all agency decisions, is most frequently used to review the factual basis of informal rulemakings. According to the Regulatory Group and the Center for Effective Government, in practice, these two tests are applied in very similar ways.^[1][4][2]

 

[MilvetHD]

In my opinion, your nexus letter reads as unpolished and is filled with subjective hearsay and assumptions. Nexus letters should be brief and recount objective, verifiable information only. 

[Dustoff1970]

In Jan 2022 I was awarded 50% OSA Sleep Apnea due to PTSD and PTSD meds by the BVA thanks to a nexus medical opinion by Dr. David Anaise stating in great detail the method/mechanics of how the brain sends wrong signals to the physical mouth, throat, etc muscles and adversely impacting the sleep breathing rhythm of the vet and even if the vet is overweight by 30 lbs like me.  His 15 plus page MO also included many many medical treatise research studies from U.S. and world reputable medical institutions supporting his opinion.

He also explained with detailed rational how long-term PTSD and strong PTSD meds causes vets to become overweight or obese over time thus further causing and aggravating OSA and that all Obstructive Sleep Apnea has a mix of central and Obstructive apneas.

The BVA judge cited Dr. Anaise MO as a creditable and probative key piece of supporting evidence in granting my appeal.  Both the VA dufus C&P examiner and VARO rater only stated that I was overweight when they denied my claim and the BVA judge said their reason and basis for this was "defective"

Thanks to Anaise and the new 50% OSA rating I also received automatically SMC-S status rating with 5 years back pay.  BVA decision date was Jan 5, 2022, with key words Anaise, Sleep Apnea, OSA and PTSD, secondary.  I do not recall citation number but easy to find for the 

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