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OSA Sleep Apnea secondary to PTSD/MH issue

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Dustoff1970

Question

Since some members of this forum visit or members of other veterans benefits discussion forums and often receive misleading advice from those other forums then I feel necessary to offer this correct advice to counter/offset the stubborn deliberately wrong advice given by lying former VA raters and VSOs.

These chicken chit aos still say that PTSD, depression, etc does not cause or aggravate OSA and that OSA is only caused by overweight or obese vets.  They also say that obesity is not caused by VA medications, etc. and they further lie by saying paid for doctors opinions/nexus imo letters are basically worthless and waste of money and that the VA/BVA are aware of these fee doctors and discount or ignore their medical opinions.  Further the pukes say it is very rare for vets to win these types of claims.  This is plain stubborn deliberate lying BS by these former VA/VSO pukes.

To begin with and I will use myself as an example later the BVA and not the VARO raters in fact the BVA does often grant vets service connection of OSA as secondary to PTSD or Depression, etc. and further more they recognize and often agree with paid fee doctors medical favorable opinion that PTSD and MH has caused and/or aggravated OSA in vets that are also overweight or obese and BVA often agrees that certain MH and other medications cause vets to be overweight, etc. 

In 2022 I was granted on appeal to the BVA a 50% rating for OSA as secondary to both my Nam combat PTSD and VA medications for PTSD and I was also slightly overweight.  Unlike the sorry VA C&P examiner and VA VARO raters the BVA also accepted my private doctor's paid medical opinion (nexus letter) stating that my PTSD and medications caused and aggravated my  OSA and also caused me to be overweight.   The BVA often grants appeals to vets based upon the medical opinions of this 30 year private (non VA) heart surgeon and he is well known by them.

Over the years I have read hundreds of BVA appeals and know they often grant the above type of claim/appeal that the VA raters ignore the favorable evidence and deny the claim by saying the vet is simply overweight or obese.

The former VA raters and VSOs on a particular forum are  extremely biased against attorneys and private fee doctors IMOs helping for the vets.  I suspect this is due to plain old American style jealously by government bureaucrats and retired military lifers who are the admins and moderators on that forum.  They are very narrow minded and cause harm to some vets with this misleading BS IMO.  Stick with this forum for more honest and accurate advice in addition to consulting with an experienced and qualified attorney or VSO with the right attitude.

There is also a great deal of medical research by reputable well known medical institutes further stating that PTSd and mental health problems cause and aggravate OSA and that certain medications cause patients to be overweight or obese.

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

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Edited by Dustoff1970
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To add to this:  Here is how I won mine.

1. Service connection for sleep apnea. The Veteran is entitled to service connection for sleep apnea. The Board remanded the veteran’s claim because the VA failed to provide a medical examination. The VA finally provided an examination on February 17, 2020. Counsel has not received a copy of the examination and therefore cannot fully assess its sufficiency. However, from the portions of the examiner’s opinion provided, it is inadequate for several reasons. First, the examiner determined that because the veteran was not diagnosed until 11 years after his service, it is less than likely that the veteran’s sleep apnea is related to his service. A lack of medical records is not negative evidence that disproves the veteran’s claim. Sleep apnea does not require immediate medical care. Moreover, sleep apnea in particular is a condition that is often undiagnosed, as noted by the attached article by the University of Washington. It is inappropriate to discredit the veteran’s claim merely because he does not have a treatment record for a historically underdiagnosed disorder that does not require immediate treatment.
 

Furthermore, the examiner determined that the veteran’s sleep apnea was likely not caused by the veteran’s military service because “exposure to burn pits does not cause a physical
obstruction in the airway, which is the cause of sleep apnea.” Some older research questioned whether burn pits could cause sleep apnea, however the most recent academic research from
May 2020, which is attached, shows that sleep apnea is caused by exposure to burn pits. The basis of the examiner’s decision is based on a decisively faulty premise and is therefore
inadequate.


Moreover, the examiner entirely failed to consider secondary service-connection due to the veterans' PTSD. PTSD is a well-established cause of sleep apnea, as noted in the attached
articles. The examiner’s failure to consider secondary service connection due to the veterans' PTSD, which is noted throughout his medical records, renders the examination inadequate. If the
VA provides an examination, it must be an adequate one. The multiple failures committed by the examiner renders their opinion inadequate and the veteran must be provided a new examination. Please re adjudicate the claim accordingly.
 

Also attached are the following articles:
1. Visesh Kapur et al, Medical Cost of Undiagnosed Sleep Apnea, Pulmonary and Critical Care Division, Department of Medicine, University of Washington.


2. Chelsey Poisson et al, A Pilot Study of Airborne Hazards and Other Toxic Exposures in Iraq War Veterans, International Journal of Environmental Research and Public Health, published May 9, 2020.


3. The Connection Between PTSD and Sleep Apnea, Sleep Foundation.


4. Peter J. Colvonen et al, Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans, Journal of Clinical Sleep Medicine. 

Additionally, based upon common errors committed by the VA, the Veteran argues and preserves the following:
 

Examination inadequate. If the VA Secretary provides an examination, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulation instructs adjudicators to return as inadequate an examination report that is not supported by sufficient findings or does not contain sufficient detail. 38 C.F.R. § 4.2; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001);  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97 (2010) (citing   Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), for the proposition that “...when a medical examination report was susceptible to multiple fair but inconsistent meanings, the Board erred in failing to seek clarification”). “Most of the probative value of a medical opinion comes from its reasoning” and a medical opinion is not, “...entitled to any weight . . . if it contains only data and conclusions.  ” Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008).

An inadequate medical examination frustrates judicial review because it does not adequately reveal the current state of the disability. Hicks v. Brown, 8 Vet. App. 417, 422 (1995).
The necessity of a thorough examination and a thorough explanation of the examined conditions is simple. The primary purpose for the examination is to require the Board to decide the claim based on sympathetic development and the resulting accurate view of the veteran’s current medical status. See 38 U.S.C. § 5103A(d);   Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).


The Board “...must provide for the conduct of an adequate examination during the active stage of appellant’s (disorder), and must, on the basis of that examination and all evidence of record,
ascertain the existence, extent, and significance under the rating schedule of any (symptom) due to (the disorder).”   Ardison v. Brown, 6 Vet. App. 405, 408 (1994).


If the VA decides a case without an adequate and competent medical examination, it is, in effect, supplying its own medical opinion, which is readable error. See Colvin v. Derwinski,
1 Vet. App. 171, 175 (1990). An independent medical opinion must contain sufficient information so that VA is not exercising independent medical judgment.  Stefl v. Nicholson, 21
Vet. App. 120, 124 (2007);   see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (The Secretary, “...when he undertakes to provide a medical examination to obtain a medical opinion, must ensure that the examiner providing the report or opinion is fully cognizant of the claimant’s past medical history”);   Stegall v. West, 11 Vet. App. 268, 270 - 71 (1998) (VA examination remanded for inadequacies of exam on remand).


When the examiner states that a non-speculative decision cannot be reached, the Board must consider several factors in determining whether the opinion is adequate.

First, the record must demonstrate that the examiner has weighed all procurable information.

Next, the examiner must provide an explanation for his or her conclusion. The record must also demonstrate that an inability to provide an opinion without resorting to mere speculation “’reflects the limitation of knowledge in the medical community at large’ and not a limitation—whether based on lack of
expertise, insufficient information, or unprocured testing—of the individual examiner. ” Sharp v. Shulkin, 29 Vet. App. 26 (2017).
Veteran’s lay statements. The VA must adequately review veteran’s favorable lay statements concerning his medical status. His statements are competent proof. These statements
of his current medical condition need not be supported by contemporaneous, corroborative medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006);   see Dalton v.
Nicholson, 21 Vet. App. 23, 39 (2007) (where Court explained VA was in error when the sole premise for the examiner’s conclusion was the lack of notation or treatment of the claimed disability in service); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (noting that the purpose of section 1154(b) was “...to overcome the adverse effect of a lack of official record of incurrence or aggravation of a disease or injury and treatment thereof” (citing H.R. Rep. No. 1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035)).


VA must address the credibility and probative value of veteran’s lay statements in its analysis of veteran’s case. VA must have a valid basis for finding veteran’s lay testimony incredible where VA concludes that veteran’s claimed injury is one of such severity, it would have been recorded in service had it actually happened during that time.  Kahana v. Shinseki, 24 Vet. App. 428, 433-34 (2011).


The VA must consider lay statements where (1) the, “...layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. ” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Crediblelay evidence alone is competent to establish the existence of the claimed condition(s). Further, in some instances lay evidence by itself is sufficient to establish a medical nexus between veteran’s service and current disability, insomuch that no “medical evidence” is needed to substantiate the claim.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
 

To decide the claim without an accurate record and review of veteran’s lay statements as to his actual physical condition is in contravention to law and effectively operates to allow the
VA to substitute its own opinions for that of record. This is always harmful error. See Doran v. Brown, 6 Vet. App. 283, 287 (1994) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990)). 


Discounted favorable evidence. VA has the obligation to weigh and consider all of the evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997);  Hogan v. Peake, 544 F. 3d 1295, 1298 (Fed Cir. 2008) (A determination regarding service connection requires consideration of “...all pertinent medical and lay evidence...”) (quoting 38 C.F.R. § 3.303(a)).


The VA must do this whether it finds the evidence persuasive or not. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990).
If the VA is going to discount favorable evidence, it must explain why it did so, make its explanation understandable to laypersons and provide sufficient detail to facilitate court review.  See Norris v. West, 11 Vet. App. 219, 224-25 (1998);  Allday v. Brown, 7 Vet. App. 517, 527 (1995). This is required as a matter of law. See 38 U.S.C. § 7104 (d);  Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994);  Schafrath v.
Derwinski, 1 Vet. App. 589, 592-93 (1991);  Daves v. Nicholson, 21 Vet. App. 46, 51 (2007) (citing Meyer v. Brown, 9 Vet. App. 425, 233 (1996)).

 

VA errs when considering the effects of medication on the appropriate rating for appellant’s service-connected condition when those effects are not explicitly contemplated by the
rating criteria.  Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). VA errs in taking those effects into account when evaluating veteran’s disability rather than limiting itself to the symptoms expressly
contemplated by the appropriate rating code. Conditions caused by the adverse side effects of medications used to treat a service-connected condition should be service-connected on a secondary basis. Wanner v. Principi, 17 Vet. App. 4 (2003), rev’d on other grounds, 370 F.3d 1124 (Fed. Cir. 2004).

 

Where a medical record is incomplete, the VA should refer the examination report back to the examiner for clarification. 38 C.F.R. § 4.2. This is also the case for private medical examination reports. Savage v. Shinseki, 24 Vet. App. 259 (2011) (In Savage, the Court explicitly limited VA’s duty to seek clarification of private medical reports to situations where “...the missing information is relevant, factual, and objective–that is, not a matter of opinion...”
24 Vet. App. at 270. Specifically, the Court held that when a private medical report is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight, the Secretary must attempt to obtain such clarification. Id. at 267. Sympathetic development. 38 C.F.R. § 3.103(a) mandates the “...VA to assist a claimant in developing the facts pertinent to the claim...” and obligates the VA “...to render a
decision which grants every benefit that can be supported in law... ” See Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en banc) (noting 38 C.F.R. § 3.103(a) is the regulation setting
forth the duty to assist codified in 38 U.S.C. § 5103A));  see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (declaring Congress has mandated “...that the VA is to fully and 
sympathetically develop the veteran’s claim to its optimum before deciding on the merits.”). (Quotation omitted).


Included in this obligation is the obligation to weigh and consider all of the evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997);  Hogan v. Peake, 544 F. 3d 1295, 1298
(Fed Cir. 2008) (A determination regarding service connection requires consideration of “...all pertinent medical and lay evidence...”) (quoting 38 C.F.R. § 3.303(a)). This pertains to all
claims.  Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007); see also Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004).

The VA must consider all evidence whether it finds it persuasive or not. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). This obviously includes conscientious, independent consideration of veteran’s lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).


The Court in Ingram v. Nicholson stated that although there is no legal “...definition of ‘sympathetic reading’, it is clear from the purpose of the doctrine that it includes a duty to apply some level of expertise in reading documents to recognize the existence of possible claims that an unsophisticated pro se claimant would not be expected to be able to articulate clearly.”
Ingram, 21 Vet. App at 255; see also Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (Board must consider all theories of entitlement that were reasonably raised by either the veteran
or by the evidence in the record).


Despite such obligation, the VA has failed to develop and adjudicate its decisions with an eye to allowing the veteran the maximum benefit to which he is entitled, which is a failure in its
duty to assist and outcome determinative error. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001); Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); see also  Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).


Benefit of the doubt and burden of proof. Veteran argues he is being held to a burden of proof beyond that set by law. The VA holds veteran to an unfair burden. Federal statute clearly states, “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b). “...the preponderance of the evidence must be against the claim for benefits to be denied.” Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990). VA applied the improper standard of proof in this case.

Reasons and bases. VA is required to consider and “...discuss in its decision, all ‘potentially applicable’ provisions of law and regulation. ” Majeed v. Nicholson, 19 Vet. App. 525, 529 (2006) (citing Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991)); 38 U.S.C. § 7104(a).

The VA must account for all of the evidence whether it finds it persuasive or unpersuasive, and provide reasons and bases for rejecting evidence.  See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990).

It must weigh the credibility and probative value of all evidence. See  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).
 

If VA is going to discount evidence and refuse to provide veteran a medical examination, VA must explain why it did so. These reasons must be sufficient to allow veteran the opportunity
to understand why it did so.  See Norris v. West, 11 Vet. App. 219, 224-25 (1998);  Allday v. Brown, 7 Vet. App. 517, 527 (1995). This is required as a matter of law. See 38 U.S.C. § 7104(d);  Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990);  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). This is not only for the benefit of the veteran, but also the federal appellate court which will ultimately review the claim and its adjudication.  See Allday v. Brown, 7 Vet.
App. 517, 527 (1995). 

 

Missing medical records. “Since the VA has been unable to obtain the veteran’s service medical records, it has a heightened duty to explain its findings and conclusions. ” See Lee v. Nicholson, 2006 U.S. App. Vet. Claims LEXIS 1393. More specifically, in Washington v. Nicholson, the Court held that when a veteran’s records are presumed lost or destroyed, the Board is “...under a heightened duty to consider and discuss the evidence of record and supply
well-reasoned bases for its decision as a consequence of the appellant’s missing SMRs.” 19 Vet. App. 362, 371 (2005). The Court held the Secretary breached the duty to assist in failing to 
“explore alternatives” to missing service records and “...VA should make reasonable efforts to obtain such reports, statements, or other records that might provide corroboration for the
appellant’s assertion...” of an in-service injury, disease, or event. Id.
The Secretary’s duty to assist includes a duty to obtain any “...relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the
Secretary to obtain.” §38 U.S.C. § 5103A(c)(1)(C); §38 C.F.R. § 3.159(c)(2);  Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). 

Efforts to obtain records in the custody of a Federal
department or agency must continue unless “...VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.” 38 C.F.R. § 3.159(c)(2).
“If VA . . . after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the
claimant with oral or written notice of that fact.” 38 C.F.R. § 3.159(e)(1).

The notice must;

(1) identify the records VA was unable to obtain;

(2) explain what efforts the VA took to obtain the 
records;

(3) describe any further action VA will take regarding the claim; and

(4) notify the claimant that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-(iv).


Negative evidence and mischaracterization of claims. The Board may not consider the absence of a medical notation to be negative evidence when there is no reason a medical
examiner would have commented on a particular matter. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011).  See Douglas v. Shinseki, 23 Vet. App. 19, 25–26 (2009) (“...the duty to gather
evidence sufficient to render a decision is not a license to continue gathering evidence in the hopes of finding evidence against the claim”).


The Board may not mischaracterize veteran’s claims. Mischaracterization of claims may lead to considering issues outside of “...the scope of the appeal, applying the wrong law, and
engaging in the wrong analysis. ” See Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014) (the Murphy Court recognized mischaracterization of claims as the catalyst to improper reduction of claims, which the Court indicated has a “...’chilling effect’ in the administrative appeals process...”). 


Medical treatises. A medical article or treatise “...can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidences
“...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. ” Sacks v. West, 11 Vet. App. 314, 317 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998).
“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 v. West, 212 F.3d 1255, 1265 (2000). “An ‘evaluation’ of treatise evidence 
should be made in the first instance by the BVA. ” Timberlake v. Gober, 14 Vet. App. 122, 131 (2000). If the Board fails to consider medical-treatise evidence by the veteran, the Court will remand the case to “...the Board to evaluate “that evidence” to see if it supports a nexus.” Id. 

Due process. Veteran also contends the Regional Office’s (RO) failures as expressly asserted in this Notice of Disagreement rise to the level of the Secretary’s denial of Veteran’s procedural due process protections, guaranteed to U.S. military veterans by the Fifth Amendment, U.S. Constitution. See Cushman v Shinseki, 576 F.3d 1290 (Fed. Cir. 2009).

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  • Founder

Found this, don't know if it will help, but here you go.

Here is a denial and then a grant:

Denial

 The records reflect that you are a Veteran of the Gulf War Era and Peacetime. You served in the Army from Jan 3, 1983, to December 17, 1990. You filed a claim for increased evaluation that was received on August 12, 2019. Based on a review of the evidence listed below, we have made the following decisions on your claim. 

DECISION 

Entitlement to special monthly compensation based on aid and attendance is denied. 

EVIDENCE 

  • lVA treatment reports,  VAMC, for the period December 8, 1997 to February 5, 2020
  • lVA Form 21-526 EZ: Application for Disability Compensation and Related CompensationBenefits, received August 12, 2019
  • Subsequent Development Letter from the VA, dated August 28, 2019
  • Statement in Support of Claim, received September 9, 2019
  • lVA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, Dr. Xxxxxx of the  VAMC, received October 18, 2019, dated September 5, 2019
  • lVA Disability Benefit Questionnaire (DBQ), VAMC, conducted February 5, 2020 

REASONS FOR DECISION 

Entitlement to special monthly compensation based on aid and attendance. 

Entitlement to special monthly compensation based on aid and attendance is denied. 

Entitlement to an additional payment of compensation is established when service-connected impairment imposes a special level of disability. Entitlement to special monthly compensation is not warranted in this case because the criteria regarding aid and attendance have not been met.{38 CFR 3.350} 

This benefit is payable for being so helpless (due to service-connected disabilities) as to be permanently bedridden or in need of regular aid and attendance. The following will be considered in determining the need for regular aid and attendance: inability to dress or undress, or to keep ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid(this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed oneself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to the daily environment. Bedridden will be a proper basis for the determination. "Bedridden" means that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with their condition as a whole. It is only necessary that the evidence shows that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations as to the need for regular aid and attendance will not be based solely upon an opinion that their condition is such as would require them to be in bed. They must be based on the actual requirement of personal assistance from others. (38 CFR 3.350, 38 CFR3.352) 

In this case, the overall evidence of record does not support that you presently are in need of aid and attendance due to service-connected impairment. The VA Form 21-2680, received October 18, 2019, shows that you are in need of regular aid and attendance due to impairment associated with your non-service-connected left knee arthritis, which causes you to be a fall risk. Specifically, the examiner notes that your arthritis-caused gait issues restrict your activities, functions, and ability to provide adequate self-care. Although findings from the recent VA DBQ referenced a prior exam dated 2010, which discussed reported limitations due to past mental symptoms, the current evidence does not show symptoms attributed to service-connected impairment that result in the regular need for aid and assistance. 

Favorable Findings identified in this decision: 

You require aid and attendance. Your VA Form 21-2680, dated September 5, 2019, shows that you require regular assistance in bathing and attending to other hygiene needs. 

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions, Bonuses, and Veterans' Relief contains the regulations of the Department of Veterans Affairs, which govern entitlement to all veteran benefits. For additional information regarding applicable laws and regulations, please consult your local library or visit us at our website, www.va.gov.

 

Grant

REASONS FOR DECISION 

Entitlement to special monthly compensation based on aid and attendance. 

The Board of Veterans Appeals decision dated February 8, 2021, reported that based on a review of the medical evidence, the record appears to be in relative equipoise, and therefore, as reasonable doubt is to be resolved in the Veteran's favor, it is their determination that entitlement to special monthly compensation based on aid and attendance is warranted. Please see their decision for additional information. (38 CFR 3.102, 38 CFR 4.3) 

Entitlement to special monthly compensation under 38 U.S.C. 1114,  subsection (l) and 38 CFR 3.350(b) may be granted on account of the Veteran being so helpless as to be in need of regular aid and attendance while not hospitalized at U.S. government expense. 

Entitlement to special monthly compensation is warranted in this case because criteria regarding aid and attendance have been met from August 12, 2019. (38 CFR 3.350, 38 CFR 3.400, 38 CFR3.2500, 38 CFR 4.6) 

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions, Bonuses, and Veterans' Relief contains the regulations of the Department of Veterans Affairs, which govern entitlement to all veteran benefits. For additional information regarding applicable laws and regulations, please consult your local library or visit us at our website, www.va.gov.

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  • Community Owner

Great Post

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When I went to my wife's sleep doc, and asked him a similar question (does depression/PTSD cause OSA), and he responded that PTSD and depression have very similar symptoms to OSA.  For example, PTSD and depression have syptoms of poor sleep and its well known that sleep apnea has sleep issues.  

     Further, when you get poor sleep, its frankly, well depressing.  

     This is evidence of the "

Quote

culture of denial

" at the VA raters, because, unless I have guessed wrong about who Dustoff suggested said this at the VARO's, it basically amounts to:

     

Quote

Forget about the IMO's and doc opinions, just deny sleep apnea secondary to PTSD.  After all, "we raters" know

more about medicine than doctors, right?

And, this person who said this claims to train rating specialists.  Its exactly why the BVA is so backed up with hundreds of thousands of claims:  The BVA judges claims on evidence presented, and does not make predetermined judgement calls on

IMO doctors.  

     In my personal claim, I had all 3 Caluza elements:  

I had exposure to loud noise documented,

I had valid evidence from an audiologist who diagnosed my hearing loss, AND, of course, the audiologist

provided a link between "exposure to loud noise in the military service" and my diagnosis of hearing loss.  (nexus).

     In spite of having all the evidence, I was denied because "it was too long since military service", a completely bogus

made up denial.  The denial was overturned at the board, but not before I became a homeless Veteran due to the fact

I had no income for my family of 4 while fighting the VA for 4 years in appeals.  

       Even after the board overturned the denial, the VARO "in accurately implemented" my hearing loss by assigning a zero percent rating, virtually assuring my homelessness.  

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Yes Boconvet many VA raters, senior DROs and VSOs are real low life SOBs.  I have listened to them joke about our claims in their smoke break area outside the Waco VARO office over 25 years ago.  There is only one VA rater that gives honest answers with a helpful attitude on another forum.  The other retired ones and including lifer military retired mods and admins are real chits in their attitude toward new member questions on claims. 

They absolutely hate those of us who successfully represents our selves successfully on claims and appeals. There seems to be an attitude of government career bureaucrats that they are all superior to the rest of us in all things.  No body really likes them except those depending on their paycheck.

Edited by Dustoff1970
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