- BVA approves OSA due to PTSD based on Dr Anaise’s IMO
- Veteran Disability Claims: Nexus and IMO Letters
- Dr. David Anaise Testimonials
- IMO Sample
- Veteran Disability Total Unemployability , TDIU
- Expediting VA Claims – Can it be done?
- Lawyer Representation before the Court of Appeals for Veterans CAVC
- Obstructive Sleep Apnea
- Understanding Knee Injury Disability Rating
- Understand the New Rating for Back and Neck Spinal Disability
- Winning Your Claim For PTSD Disability Benefits
- What is the VA Disability Rating System? by Dr. David Anaise, MD
- Rating Table for Selected Symptoms – Veterans’ Disability
- Rating Table for Digestive Issues – Veterans Disability
- Rating Table for Heart and Lung Disability Symptoms
- Bone and Joints Disability Rating Table
- Veterans’ Claims: RK v. Shinseki 13-2908
- Veterans’ Claims MU v. Shinseki 09-3570
- Veterans’ Claims: EW v. Shinseki 12-2155
- Veterans’ claims: HH v. Shinseki 11-1612
Rating Table for Selected Symptoms – Veterans’ Disability
Veterans’ Disability Ratings Table
Below, I’ve used a ratings table to illustrate how selected neurological and psychological symptoms rate on the veterans disability rating system.
What is the VA Disability Rating System? by Dr. David Anaise, MD
Disabled VA Benefits
What is the VA disability rating system?
Unlike the SSA, which grants benefits for persons who are unable to work at any job in the national economy, the VA grants benefits for persons whose impairment can potentially decrease their ability to earn a living. The VA disability rating system provides degrees of impairment from 0-100% in increments of 10. The lowest compensable rating is 10% which pays a claimant $115/month (as of December of 2006). A 100% rating provides for monthly benefits of $2,471.
Winning Your Claim For PTSD Disability Benefits
Why are Veterans who file for PTSD Disability Benefits frequently denied?
The three main reasons PTSD claims used to be denied are:
1. (1) The rating officer provided a lower rating than was justified by the clinical presentation.
2. (2) The VA concluded that the stressor the veteran experienced was not “an event that is outside the range of usual human experience and would have been markedly distressing to almost anyone.”
3. (3) There was no evidence that the veteran was actually in combat.
These conclusions by the VA are no longer acceptable reasons for denial of benefits!
Recent VA rulings, Court rulings, and the replacement of the DSM-III-R with the DSM-IV as the basis for determination of disability, have dramatically changed the way the VA rates, or should rate, veterans applying for disability benefits. The Department of Veterans’ Affairs has recently published a new manual, “Best Practice Manual for Posttraumatic Stress Disorder (PTSD) Compensation and Pension Examinations.” With the publication of this manual, the VA has declared: “The Veterans’ Benefits Administration (VBA) and Veterans’ Health Administration (VHA) are committed to improving these services to veterans, and improving the quality of compensation and pension examinations for PTSD.” The manual changes many of the assumptions that led to denial of PTSD claims in the past. Review of this manual is thus critical to claimants and their attorneys.
Understand the New Rating for Back and Neck Spinal Disability
Understand the new rating for back and neck spinal disability
Degenerative joint disease of the spine is one of the most common claims made by Veterans for service-connected disability. That is because back injury is so common during military service. Contrast this with other conditions, such as cardiac conditions, which rarely affect young soldiers. This severe condition causes many Veterans to be unable to work. It is thus surprising that Veterans receive disability ratings of 10 to 20% for back injury, but receive much higher ratings and unemployability for conditions like depression or cardiac disease. The reason for this low rating is based on the history of disability rating. The rating dictionary was created before World War I and was based on medical science existing at that time. The VA was very resistant to updates and upgrades of its rating index. Recently, the VA added new and modern rating classifications for mental disease and cardiac diseases which conform with the newest accepted classifications by the American Medical Association, but progress in updating the ratings of common musculoskeletal ailments is slow. More recently, the VA did allow some modifications to its rating of degenerative joint disease of the back and neck. Knowledge of these subtleties involved in the rating of this condition are important for a successful and fair rating of your service-connected disability.
Understanding Knee Injury Disability Rating
Knee injury is very common among servicemen. The injury may be slight, but years later, many veterans develop severe knee arthritis attributed to their initial service injury. Many veterans are so disabled by their knee arthritis that they are unable to work. Regrettably, the rating for knee disability are outdated and have not been updated for many years. As a result, regional offices around the country provide rating of only 10% to 20%. Many veterans with knee disability are unable to maintain gainful employment, and yet they cannot apply for unemployability because their disabling condition is rated as only 20%.
Obstructive Sleep Apnea
What is Sleep Apnea
Obstructive sleep apnea (OSA) is a sleep disorder that involves cessation or significant decrease in airflow in the presence of breathing effort. It is the most common type of sleep-disordered breathing and is characterized by recurrent episodes of upper airway collapse during sleep. These episodes are associated with recurrent oxyhemoglobin desaturations and arousals from sleep. Generally, symptoms of OSA begin insidiously and are often present for years before the patient is referred for evaluation.
Nocturnal symptoms may include the following: Snoring, usually loud, habitual, and bothersome to others Witnessed apneas, which often interrupt the snoring and end with a snort Insomnia; restless sleep, with patients often experiencing frequent arousals and tossing or turning during the night
What are the symptoms of Sleep Apnea
Lawyer Representation before the Court of Appeals for Veterans CAVC
Recent statistics show that only 17% to 28% of cases are approved at the Board of Veterans’ Appeals (BVA). Fortunately, the U.S. Court of Appeals for Veterans’ Claims (CAVC) reverses the majority of the adverse BVA decisions. Between 1995 -2006, the CAVC heard 18,000 cases in which the claimants had been denied benefits at the BVA level. In almost 80% of the cases, the CAVC either reversed the BVA decision or remanded it for re-adjudication, finding at least one legal error in the BVA decisions. Thus, it is essential that the veteran consider from the outset whether his claim can be heard by the CAVC. Only members of the CAVC Bar can represent Claimants before the Court. Consider this carefully when choosing a veteran appeals lawyer.
Expediting VA Claims – Can it be done?
If you’re interested in expediting VA claims, the short answer is unfortunately that it cannot be done. The VA has a rather rigid system of first-come first-served, and will not allow an attorney to push your case ahead of someone else’s case. Hiring an attorney, however, can speed up your case significantly by simply avoiding mistakes veterans make in representing themselves.
How the VA system works and how I interact with the system
I would first like to explain how the VA system works and how I interact with the system.
Upon taking on representation, I immediately send the VA a Notice of Disagreement (NOD) and a request for your claim file. Unfortunately, through a process called Freedom of Information Act, it generally takes 6-12 months for the claim file to arrive in our office. Thus, in addition to our efforts, you may want to try and obtain the claim file from your regional office on your own, as sometimes we see that clients receive their claim file faster. Once the claim file is received, I summarize its contents and compose an appeal brief. The appeal brief will be sent to the DRO (Decision Review Officer) or BVA with exhibits. This brief will be sent only when the RO or BVA informs us that they are ready to review your case.
The DRO process
A few months after filing the NOD, the regional office will send us an Appeals Election Form asking us to select the traditional appeals process or the DRO (Decision Review Officer). We will file the Appeals Election Form requesting the DRO process. The DRO is a senior officer at the regional office; he will review your case and has the power to award benefits. Prior to the DRO making any decision in your case, he will either offer you a hearing or ask whether you have any additional information to provide before he makes the decision. This is the only time I can intervene in your case. There is no reason to send an appeal brief to the VA until the regional office informs us that they are ready to review your file. An appeal brief sent uninvited will simply linger in a box with the claim file, or worse get lost. I am committed to review the contents of your claim file, draft, and file an appeal brief once the DRO announces that they are ready to review your file, either by a hearing or on the record. At that time the appeal brief will be sent to the regional office and a copy will be provided to you, so that you can bring a copy to your hearing.
After the DRO makes a decision a Statement of the Case (SOC) is issued. The rules require that Form 9, Appeal to the Board of Veterans’ Appeals, be filed within 60 days from the date of the SOC. Once the Form 9 is accepted, the BVA does not begin to work on your case, rather it waits for the regional office to certify the case to the BVA. The BVA is poorly staffed and cases are trickled to the BVA from the regional office. It will be 3 to 5 years before your case will be heard by the BVA. By law the BVA must contact us 90 days before they make any decision. I am committed to provide the BVA with a thorough brief raising all medical and legal issues prior to such a hearing. Again there is no reason to send a brief earlier as it will not be reviewed by the BVA and most likely will get lost.
There is strong data to suggest that waiving the BVA hearing, and asking the BVA to accept jurisdiction and make a decision based on the written brief may expedite your case and could shave two years off your wait time.
Based upon the hearing choice that you select, there are different tracks that the claim will follow both at the RO and at the BVA levels. If you request no hearing, the case will be prepared for transfer to the BVA and no further development will occur at the RO level. The RO then prepares a VA Form 8, Certification of Appeal, and sends you a 90 day letter, which indicates that the case is being transferred to the BVA. The letter informs you that you have 90 days to submit any additional evidence or arguments. This is when I file my appeal brief. Many claimants defeat this fast track and submit additional claims or evidence to the RO. The case, instead of progressing to the BVA, ends up lingering in the RO for additional development and the issuance of a Supplemental Statement of the Case (SSOC).
At the BVA
Shortly after the filing of the Form 9, the RO typically sends a letter to you that acknowledges the Travel Board hearing request, but also attempts to persuade you to request a different mode of BVA review. This letter explains that it could be months or years until a Travel Board hearing is scheduled, owing to the backlog of requests and the infrequency of the hearings. The letter advises you that you are on the waiting list for a Travel Board hearing. In 2009 the wait time was 771 days.
The average length of time between filing the appeal and the Board’s disposition was 886 days.
We can definitely shave two years off the waiting time by asking the BVA to rule based on the written appeal and avoid remand to the RO.
Source: Annual Report of the Chairman, Board of Veterans’ Appeals, Fiscal Year 2010
p. 19. http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2010AR.pdf
|Time Interval||Responsible Party||Processing Time|
|Notice of Disagreement Receipt to Statement of the Case||Regional Office||243 days|
|Statement of the Case Issuance to Substantive Appeal Receipt||Claimant||42 days|
|Substantive Appeal Receipt to Certification of Appeal to BVA||Regional Office||609 days|
|Receipt of Certified Appeal to Issuance of BVA Decision||BVA||212 days|
|Average Remand Time Factor||Regional Office||493 days|
|Time Interval||Type of Hearing||Average Elapsed|
|Substantive Appeal Receipt to Date of Hearing||Travel Board||743 days|
|Substantive Appeal Receipt to Date of Hearing||Videoconference||678 days|
|Substantive Appeal Receipt to Date of Hearing||Central Office (DC)||771 days|
What Can we do to expedite your case
I want to be clear that nor I, nor any other lawyer, can expedite your case. The VA clearly works on a first-come first-served basis and will not tolerate interference by a lawyer.
The most effective way to get communication from the VA is by recruiting your local Congressperson’s office to help you. By law the VA must respond to inquiries from members of Congress; each member of Congress has an officer with primary responsibilities to the constituents. The VA does grant some leverage to veterans with exceptional needs and if you meet these criteria your congressperson can petition the VA on your behalf.
There are certain things you can do to expedite your case:
Do not assume that the claim file contains the current medical information. Please go to your local VA and obtain the last two years of your medical records and send them to me.
Write a short narrative describing the major issues you are appealing and what evidence there is that these issues are service-connected.
Focus on no more than three claims which are best grounded by facts and have the potential for the highest rating. As discussed in more detail in another article entitled What is the VA Disability Rating System service-connected disability of 60% for one condition and 40% for another condition do not result in 100% disability, but rather 76%. Go to this site to calculate your combined rating or You may want to invest $0.99 in a phone app called “vetcalc” which can do the math for you. As your combined rating reaches 90%, it is extremely difficult to add new disabilities that will raise your combined rating. You need an additional 60% disability rating to reach 96% which will get you the 100% disability rating; anything below it will simply roll back to 90%. I have seen strong cases of veterans with 90% disability who file for TDIU while also attempting to add another disability of 10%. The VA will often ignore the major claim for TDIU and instead will schedule you for a C&P for the additional disability; after three years they may actually grant you 10% disability which will roll back to 90.
Nothing in the law prevents you from filing a new claim in the future. If you have well controlled hypertension but later on develop a stroke, you can always file a new claim at a later date.
In conclusion, the permissive nature of the Veterans’ Administration disability process, which is very different from the rules that apply to legal procedures and Social Security disability may actually work against you. The VA seems to turn your case back and forth between the regional office and the board and any time new medical information is provided or a new claim is added the case spins out of control. I strongly recommend that you pursue a strategy of narrowing down the issues to those that will most likely be approved and most likely generate the highest rating. If the claim is at the BVA, I shall provide the BVA with a detailed legal brief which includes the legal issues central to your case. I also attach exhibits from your large case file to facilitate review by the board lawyers. I can also attach a deposition of your testimony. To speed up your case, I recommend that we waive the hearing and focus on delivering to the BVA the most complete record. Once these measures are in place, I believe that we can shave at least two years off from the very long time frame needed to secure a successful award.
Veteran Disability Total Unemployability , TDIU
Legal Help for Veterans
What is Total Unemployability
For a veteran to prevail on a claim based on total unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable
of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 3 61, 363
(1993). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b).
The VA defines un-employability as follows [40 FR 42536, Sept. 15, 1975, as amended at 43 FR 45349, Oct. 2, 1978]:
“A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. … However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, try out or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability.”
TDIU Requirement Veteran Be Unable to Secure Substantially Gainful Occupation
The VA has defined substantially gainful occupation in its Adjudication Procedures Manual (Manual M21-1MR, Part VI, subpart ii, 2F.24.d) as that which is ordinarily
followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Marginal
employment is not considered substantially gainful employment. Marginal employment is defined as earned annual income that does not exceed the poverty threshold for
one person as established by the U.S. Department of Commerce, Bureau of the Census. Under the current poverty threshold established by the Bureau of the Census,
marginal income for the year 2010 is $11,334.00.
In Faust v. West, (13 Vet. App. 342, 356 (2000), the Court adopted a definition of a substantially gainful occupation. The Court concluded that a substantially
gainful occupation, is [an occupation] that provides [the veteran with an] annual income that exceeds the poverty threshold for one person, irrespective of the
number of hours or days that the veteran actually works.
In Roberson v. Principi, (251 F.3d 1378, 1385 (Fed. Cir. 2001), the Federal Circuit further defined that the term SGA is flexible. Although the term SGA may not set
a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent. Veteran, because of service-connected disability, is incapable of
performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. “[T]he BVA may not reject [a
veteran’s] claim without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be
other than marginal’.” Bowling v. Principi, 15 Vet.App. 1, 9 (2001) (emphasis in text) quoting Beaty v. Brown, 6 Vet.App. 532, 539 (1994) citing see also James v.
Brown, 7 Vet.App. 495, 497 (1995) (“Board ‘was not convinced that there were not some jobs he could do’ but no evidence supported that conclusion”).
The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-
connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience.
Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so
severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least
60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability
ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
In a pertinent precedent opinion, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their
individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability
shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a
subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC
75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2,317 (1992).
The Board further observes that being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term
‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v.
Principi, 251 F.3d 1378 (Fed Cir. 2001).
In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated, in
essence, that the unemployability question, that is, the ability or inability to engage in substantial gainful activity, had to be looked at in a practical manner,
and that the thrust was whether a particular job was realistically within the capabilities, both physical and mental, of the veteran involved.
Consideration of Educational and Occupational History
In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a
conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.19. Once a Veteran is found to have 60% service
connected disability (or 40%/70%) in step one of the analysis, the VA analyzes the veteran’s educational and occupational history to determine whether his service-
connected disabilities preclude him from securing or following substantially gainful employment (activity) (SGA).
In Beaty v. Brown, 6 Vet. App. 532, 537 (1994), the Court held that to determine whether service connected disability precludes SGA, a general medical examination is
to be scheduled in which the examiner is requested to provide an opinion as to whether or not it is at least as likely as not that the veteran’s service-connected
disability or combined disabilities render him or her unable to secure and maintain SGA, to include describing the disabilities’ functional impairment and how that
impairment impacts on physical and sedentary employment. See also VA Training Letter 10-07 (Sept. 14, 2010).
The Court has stated: “[w]here the veteran submits a claim for a TDIU rating … the BVA may not reject that claim without producing evidence, as distinguished from
mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” The simple fact that a veteran may be young, or
may be highly educated, or may have been recently employed, or may have had a long work career are not decisive, and standing alone are insufficient justifications
to deny a TDIU claim; Gleicher v. Derwinski, 2 Vet. App. 26 (1992).
What is the effective date for TDIU
The General Counsel provided a binding opinion in VAOPGCPREC 12-2001 regarding Roberson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29,
2001), holding the following:
1. Once a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability,
the requirement in 38 C.F.R. 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and the VA must consider whether the veteran is
entitled to total disability based upon individual unemployability (TDIU).
2. A veteran is not required to submit proof that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful
occupation, as required for a TDIU award pursuant to 38 C.F.R. 3.340(a).
“The VA erroneously demanded that the veteran first file for TDIU and assign the onset date to the date veteran filed for TDIU or filed VA Form 21-8940. This is an
error. When a veteran files an original claim for evaluation of a disability or a claim for an increase in the evaluation of a disability that has already been
rated by the VA, the claimant is generally presumed to be seeking the highest benefit allowable. (See AB v. Brown, 6 Vet. App. 35, 38 (1983); see also Roberson v.
Principi, 251 F.3d 1378, 1383 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009); Norris v. West, 12 Vet. App. 413, 421 (1999). If either claim includes
facts that indicate that the veteran is unemployable, the VA is obligated to consider and adjudicate a TDIU claim.”
In Servello v. Derwinski, 3 Vet. App. 196 (1992), the court held that the existence of an inferred claim for TDIU might have entitled the veteran to an earlier
effective date because under 38 U.S.C.S. 5110(b)(2), the effective date of an award of increased compensation shall be the earliest date as of which it is
ascertainable that an increase in disability occurred if the application is received within one year from such date. The court reasoned that because under 38 C.F.R.
3.155(a), the VA was required to, but did not, forward to the veteran a TDIU application form, the one-year filing period for such application did not begin to run.
Thus, as a matter of law, the inferred claim submitted prior to the date of a formal TDIU application must be accepted as the date of claim for effective date
In Collier v. Derwinski, 2 Vet. App. 247, 251 (1992), the Court held the VA was obliged to consider issue of entitlement to TDIU benefits despite the veteran’s not
having filed the specific TDIU application form because he has continually stated that he is unable to work due to his schizophrenia. Roberson, 251 F.3d at 1384;
Norris, 12 Vet. App. at 421
Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board has a duty to investigate Veteran’s entitlement to TDIU.
Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board has a duty to investigate Veteran’s entitlement to TDIU. In Rice v. Shinseki,
22 Vet. App. 447 (2009), the Court made it abundantly clear that the Veteran Administration has a duty to investigate the eligibility of a veteran for TDIU when the
veteran requests a higher rating which will entitle him to schedular unemployability and the records indicate evidence of unemployability. The Court stated:
“It is clear from our jurisprudence that an initial claim for benefits for a particular disability might also include an assertion of entitlement to TDIU based on
that disability (either overtly stated or implied by a fair reading of the claim or of the evidence of record)( emphasis added) ….The Federal Circuit’s recent
decision in Comer v. Peake contains language consistent with this analysis: “A claim to TDIU benefits is not a free-standing claim that must be pled with
specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” 552
F.3d 1362, 1367 (Fed. Cir. 2009). This statement of the law is consistent with and reiterated the Federal Circuit’s earlier decision in Roberson v. Prinicpi,
involving the assignment of an initial disability rating, which reversed this Court’s holding that Mr. Roberson failed to make “a claim for TDIU” and held that
consideration of TDIU is required once “a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally
submits evidence of unemployability.” 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Bernklau v. Principi, 291 F.3d 795, 799 (Fed. Cir. 2002) (discussing a request
for TDIU in the context of a claim for increased compensation for an already service-connected disability). Further, this Court has already stated this principal
clearly: “A TDIU rating is not a basis for an award of service connection. Rather, it is merely an alternate way to obtain a total disability rating without being
rated 100% disabled under the Rating Schedule.” Norris v. West, 12 Vet.App. 413, 420-21 (1999).
Considering more closely the facts of Comer, Roberson, Bernklau, and Norris, we hold that a request for TDIU, whether expressly raised by a veteran or reasonably
raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either
as part of the initial adjudication of a claim or as part of a claim for increased compensation, where the disability upon which entitlement to TDIU is based has
already been found to be service connected.”
The VA may not deny unemployability based solely on the failure of the veteran to submit Form 21-8940.
The VA often defends its decision not to consider unemployability based on the failure of the veteran to submit Form 21-8940.
First of all, in doing so the Board violated its own policy as clearly expressed in the manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, which
states: “Note: Although a VA Form 21-8940 can be an important development tool, it is not required to render a decision in an IU claim.”
Secondly, the Court in Rice already stated that Form 21-8940 is only one of several ways Veteran can request TDIU:
“The Court holds that a request for TDIU is best understood as part of an initial claim for VA disability compensation based on the individual effect of the
veteran’s underlying disability or disabilities or as a particular type of claim for increased compensation. This is not to say that a claimant cannot submit a
request for TDIU at any time, whether on a VA Form 21-8940 or in any other manner (emphasis added). Submission of a request for TDIU does not change the essential
character of an assertion of entitlement to TDIU as a part of either an initial claim or a claim for increase.”
Thirdly, pursuant to 38 C.F.R. § 4.16(a), See also Beaty v. Brown, 6 Vet.App. 532, 537 (1994):
“The Board “may not reject [an application for TDIU] without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would
produce sufficient income to be other than marginal.”
The manual further instructs the rating agency to be more vigilant where the veteran, (2-F-9):
“Development to produce the evidence necessary to establish the degree to which SC disability has impaired the Veteran’s ability to engage in self-employment must
generally be more extensive than development in cases in which the Veteran worked for others.
When determining entitlement of self-employed individuals to increased compensation based on IU, consider the relationship between the frequency and the type of
service performed by the Veteran for his/her business and the Veteran’s net and gross earnings for the past 12 months.
Consider facts of the case, such as
• low gross earnings that support a finding of marginal employment, especially when the amount of time lost from work due to SC disablement is taken into
• high gross earnings that indicate the Veteran is capable of engaging in a substantially gainful occupation.
If the information on VA Form 21-4192 only states that the Veteran retired, then request additional information as to whether the Veteran’s retirement was by reason
of disability. If so, ask the employer to identify the nature of the disability for which the Veteran was retired.”
While we believe that VA Form 20-8940 is not mandatory, and clearly should not be the basis for denial of Veteran’s right to benefits, we urge you to enclose the
form with your appeal
One of my clients posted this sample IMO letter on Hadit http://www.hadit.com/forums/topic/55854-anyone-use-david-anaise-md-jd/
The sample is redacted to shield his identity and the identity of the treating physicians
INDEPENDENT MEDICAL EXPERT (IME) NEXUS-OPINION 19 August 2014
To: Veterans Administration (VA)
As my attached curriculum vitae indicates [EXHIBIT 1], I am a surgeon with almost thirty years of medical experience. I was Clinical Associate Professor of Surgery and Attending Surgeon in Transplantation at SUNY at Stony Brook. I served as President of the New York Transplantation Society and as Assistant Editor of Transplantation Proceedings. I hold three patents. I have authored three book chapters and 106 research papers published in peer reviewed medical journals.
Mr. CB (“Veteran”) served in the Navy during the Gulf War Era, from December 4, 2002, to April 30, 2012. The rating decision of July 3, 2013, granted service connection for lumbar spondylolysis L5-S1 with a 10% disability rating. Service connection for allergic rhinitis and deviated septum were denied; the VA stated that these conditions did not exist during his service. The veteran also suffers from obstructive sleep apnea.
After reviewing the veteran’s medical records, including service records, I find that the conditions of allergic rhinitis and deviated septum were indeed present during his military service. I also opine that it is more likely than not that the veteran’s obstructive sleep apnea is secondary to nasal obstruction due to allergic rhinitis and deviated septum.
Review of the medical records
In 2007, while in service, the veteran was prescribed nasal sprays for the treatment of his nasal condition. A medical record from February 5, 2008, shows that Dr. PC saw the veteran for nasal obstruction. On exam the veteran was found to have a deviated septum and the nasal turbinates were hypertrophied. The record also shows that the veteran was treated with nasal drops; the prescription was last filled in May of 2007. [EXHIBIT 2]
In 2009, while still in service, the veteran received care at Makalapa Clinic and the Tripler Army Medical Center (TAMC) in Honolulu, Hawaii. He was examined by Dr. GN on March 4, 2009, who diagnosed deviated nasal septum and recommended an evaluation at the ENT Clinic. He was also prescribed Nasonex. [EXHIBIT 3]
On March 11, 2009, the veteran was seen at the Ear, Nose and Throat Clinic at TAMC by Dr. MR for deviated septum. The veteran complained of a long history of difficulty breathing due to nasal obstruction, worse on the right; with complaints of sneezing, watery rhinorrhea, itchy eyes and palate. The ENT physician stated that the veteran has clear symptomatology of allergic rhinitis and a deviated septum to the right. He recommended medical management for two months, and if the nasal obstruction persisted then septoplasty/turbinoplasty would be considered. [EXHIBIT 4]
On November 2, 2009, the veteran was seen by Dr. ND for allergy testing. Dr. Duff noted that the veteran was scheduled for a septo/turbinoplasty. On examination, he found the nasal septum deviated to the right with a spur on the left floor, and pale, swollen and edematous nasal mucosa. [EXHIBIT 5]
On March 9, 2012, the veteran was seen for a severe case of allergic rhinitis, sinus pain, cough, congestion, and nasal drainage. [EXHIBIT 6]
The veteran’s military service separation physical on April 5, 2012, shows that he again complained of problems with breathing and allergies, “had septoplasty but c/o recurrent sinus pain and difficulty breathing secondary to obstruction. [EXHIBIT 7]
Veteran underwent a sleep study on June 12, 2014, by Dr. SP who is Board Certified in Pulmonary Critical Care and Sleep Medicine. The polysomnography report revealed mild snoring, a total of one obstructive apnea and 37 hypopneas. The apneic event was 20.9 seconds in duration and the longest hypopnea was 30.5 seconds in duration. The lowest oxygen desaturation was 92%. These findings indicate a moderate form of obstructive sleep apnea. CPAP was initiated at a pressure of 4 cm and titrated up to 10 cm where improvement was noted. The veteran was also found to have an abnormal sleep architecture characterized by reduced sleep efficiency, reduced sleep latency, increased stage R latency, reduced amount of stage R sleep, and sleep fragmentation. Treatment recommendations included BPAP therapy with 10/6 cm water. [EXHIBIT 8]
Review of the medical literature
Conceptually, the upper airway is a compliant tube and, therefore, is subject to collapse.[i] [EXHIBIT 9] OSA is caused by soft tissue collapse in the pharynx. Transmural pressure is the difference between intraluminal pressure and the surrounding tissue pressure. If transmural pressure decreases, the cross-sectional area of the pharynx decreases. If this pressure passes a critical point, pharyngeal closing pressure is reached. Exceeding pharyngeal critical pressure (Pcrit) causes a juggernaut of tissues collapsing inward. The airway is obstructed. Until forces change transmural pressure to a net tissue force that is less than Pcrit, the airway remains obstructed. OSA duration is equal to the time that Pcrit is exceeded.
The Bernoulli effect plays an important dynamic role in OSA pathophysiology. In accordance with this effect, airflow velocity increases at the site of stricture in the airway. As airway velocity increases, pressure on the lateral wall decreases. If the transmural closing pressure is reached, the airway collapses. The Bernoulli effect is exaggerated in areas where the airway is most compliant. Loads on the pharyngeal walls increase adherence and, hence, increase the likelihood of collapse. This effect helps to partially explain why obese patients, and particularly those with fat deposition in the neck, are most likely to have OSA.[ii] [EXHIBIT 10]
Given this information, it is abundantly clear that even a small reduction in a diameter of the upper airway will cause a collapse of the upper airway during sleep.
The effect of nasal breathing on sleep apnea was studied by Fitzpatrick et al., Effect of nasal or oral breathing route on upper airway resistance during sleep. [EXHIBIT 11] The author reports that healthy subjects with normal nasal resistance breathe almost exclusively through the nose during sleep. The researchers studied the resistance to the upper airway through either nasal or oral breathing and found that upper airway resistance during sleep and the propensity to obstructive sleep apnea are significantly lower while breathing nasally rather than orally. Nasal obstruction during sleep results in mouth opening and mouth opening has been shown to increase the propensity to upper airway collapse. It has been shown that jaw opening is associated with posterior movement of the angle of the jaw, thus compromising the oropharyngeal airway diameter. This is caused by shortening of the upper airway dilator muscles located between the mandible and the hyoid bone. In addition, jaw opening profoundly affects the diameter of the retroglossal airway. The author has shown that there are two distinct sites of airway obstruction during sleep with oral breathing , when nasal breathing is not efficient.
It is clear from the veteran’s service records that his medical conditions of deviated nasal septum and allergic rhinitis existed while he was in service. After review of the pertinent medical literature, I opine that the veteran’s obstructive sleep apnea is secondary to nasal obstruction due to allergic rhinitis and deviated septum.
David Anaise, JD, MD
Attorney at Law
Enclosures: EXHIBITS: (see attached list of exhibits
[i] Patil SP, Schneider H, Schwartz AR, Smith PL. Adult obstructive sleep apnea: pathophysiology and diagnosis. Chest. Jul 2007;132(1):325-37. [Medline]. [Full Text].
[ii] Schwab RJ, Pasirstein M, Pierson R, Mackley A, Hachadoorian R, Arens R, et al. Identification of upper airway anatomic risk factors for obstructive sleep apnea with volumetric magnetic resonance imaging. Am J Respir Crit Care Med. Sep 1 2003;168(5):522-30. [Medline].