You can get a favorable VA Award letter granting you the disability rating you deserve. This is a very long post, and it has a TON of information in it, but I want to show you an EXCELLENT strategy for getting your VA Award Letter.
In this post, I am going to walk you through a BVA decision that won a Sleep Apnea claim for a Veteran. The representatives in the case were the Hawaii Office of Veterans Services. It is really RARE to see such solid work from a VSO before the BVA – and the work that the Hawaii Office of Veterans Services performed – and the arguments they made – were nothing short of impressive. Way to go, Hawaii Office of Veterans Services!!! (Link to the full decision is all the way down at the bottom.
Let’s get started.
For years, the Veterans Law Blog has coached tens of thousands of Veterans to do 8 things to improve their VA claim and get a favorable VA Award letter.
By doing those 8 steps, here’s what happens:
* You start to see your claim from the VA’s perspective
* You find out WHY the VA is denying your claim
* You understand HOW to get them to see your claim differently
* You learn to write your appeals and claims better – and make the rater WANT to send you that VA Award letter.
For some of you – a good number of you – this will be easy.
Yes, you’ll have to roll up your sleeves and get to work, but you won’t have to invest thousands of hours to get a favorable VA Award letter.
For others of you this will be very hard. Maybe there’s too MUCH information out there. Maybe the things you read on this blog are overwhelming and confusing. Or maybe you have a family to patch back together after 4 combat tours in Nowhere-stan.
Whatever the reason, for some of you, it will feel like the harder you try, the harder it gets…to those folks I say this: “Keep going!”
Let me tell you – I understand where you are at. Every time I start a new C-File, I feel the same way…there are a lot of threads to unravel, timelines to figure out, law to research, people to talk to….all the while, the clock is ticking: a Veteran needs the VA Disability rating and the compensation you get with the VA Award letter to help get her feet back on the ground.
If you’re in that “boat”, maybe it’s time to consider turning your claim over to a professional. Read my free eBook – the VA Attorney Field Manual – to learn how to choose an attorney for your VA Claim.
Or, you can try one more time…this time, using a simple – proven – 3 step strategy.
How I Figured Out the 3-Step Strategy to Getting a Favorable VA Award Letter.
I remember one Vietnam-era Veteran I represented a few years back.
When he came to me, his case had a dozen medical conditions he was seeking service connection for, and the C-File was littered with claims for service connection. Each of those claims was on a separate ‘track’ at the VA.
I bet he had dozens of copies of VA Form 21-4138 loaded with rants about the VA denying his claim. His file was a mess, and it made sense why the VA was denying it.
I took a methodical approach to the case…..
First, I got a copy of his C-File.
Second, I used the VA Claims Process to consolidate the claims onto ONE track.
Third, I applied the following 3 Step Strategy to his claims and appeals – he is know receiving 100% service connection, with Special Monthly Compensation.
Step 1: Attack the adequacy of the exam/examiner in unfavorable C&P Exams
We know that the VA has a Duty to Assist by providing a diagnostic or nexus opinion.
What you may NOT know is that when the VA undertakes that duty, it must provide an ADEQUATE C&P exam.
What constitutes an “adequate exam” will vary from case to case, but ALWAYS includes these 4 elements:
1) Review of your entire C-File
2) By a Qualified Medical Doctor
3) Using established Medical Protocols & Procedures
4) Concluding with a well-reasoned opinion.
If your C&P Exam lacks any one – or more – of these 4 elements, attack it.
Hit it hard.
In this post on the Veterans Law Blog, I give you the language to put in your Notice of Disagreement AND your VA Form 9 to preserve a challenge to the adequacy of the exam protocols/procedure and the examiner’s credentials
If you DON’T attack – you lose a significant advantage and you lose the right to raise this concern at the Veterans Court.
Step 2: Bolster your position with Lay Evidence.
If I’ve said it once on the Veterans Law Blog, I’ve said it a million times….Lay Evidence is the Silver Bullet in your VA Claim.
Let me restate that – competent and credible lay evidence is the silver bullet in every VA Claim.
If I had a nickel for every VA Rating Decision, every BVA decision, and every Court decision which was one solely because of competent and credible lay evidence, I’d have enough nickels to buy the St. Petersburg VA Regional Office and pay the salaries of all its employees.
Why do I say this?
Well, 2 reasons, really.
One reason is that the Burden of Proof in VA claims is the lowest legal burden that I know of: the Veteran need only show that his or her current medical condition is at least as likely as not related to military service.
Another reason is that Congress wanted this system to be EASIER for Veterans to reintegrate into civilian life, and a Veteran-friendly benefits system was supposed to help Veterans get their VA Award letter and benefits easier and quicker.
Unfortunately, Congress seems content NOT taking action to fix the bureaucracy so that it IS easier for Veterans to recover benefits.
Nevertheless, on the Veterans Law Blog, I teach you to focus not on the problem, but on the solution.
And the solution to (almost) every single VA claim denial (almost) always involves improving the competence, credibility, or quantity of lay evidence.
Step 3: Ask your treater for a solid medical opinion
I’ve talked about what is in a solid medical opinion before….click here to read more.
But, in a nutshell, the same things that make a VA C&P Exam adequate are the same things that your doctor should put in his or her medical opinion letter:
1) Statement that the Doctor Reviewed your entire C-File and lays out the history of treating you
2) Shows that he/she is Qualified to make this opinion – as your treater or by being certified in a particular medical practice area,
3) Demonstrating that the doctor used established Medical Protocols & Procedures
4) Writing out the “WHY” of the doctor’s conclusion. I explain this to most doctors by saying that they should “show their work”. It’s that simple…just like grade school math, if we don’t SHOW our work to the VA in a medical opinion, it isn’t going to count.
Now, different medical conditions need a little more than those 4 things to ensure that you get a favorable VA award letter granting you the right amount of VA disability compensation.
In particular, sleep apnea claims are going to need some special information in a medical nexus opinion – in fact, there are 4 different categories of nexus opinions based on the 4 most common scenarios that arise in VA Sleep Apnea claims.
I explain this to you thoroughly in the VA Sleep Apnea Field Manual. You can buy the individual Sleep Apnea Field Manual eBook here, or click here to purchase the VA Sleep Apnea eBook Package.
Should You Use This Strategy to Get Your VA Award Letter?
First, I have to be up front with you….this strategy is NOT right for every single case.
It may not be right for your case.
And by sharing this strategy with you, I am not giving you legal advice, and I am not advising that you use this strategy.
I am not guaranteeing that it will work in every claim – or in your claim…
…NOBODY can offer you a guarantee when it comes to VA claims….the VA is a fickle and confusing foe. If someone offers you a guarantee, RUN far away from that person.
What I AM doing is showing you an example of to use the information in this blog to better understand the VA Claims Process, to better understand the law of VA Benefits and to better understand how the law and the process work together in VA Claims.
Before you employ this – or any – strategy in this blog, “wargame” it, talk to a VA Accredited Attorney or a qualified accredited agent, and see if it is right for your claim.
Think it through for yourself, talk to others that have been down this road, and make an informed decision.
Does the Strategy Work?
I read BVA and CAVC decisions every single day – I like to see what Veterans and their advocates are doing to win claims.
I saw this strategy deployed in a recent BVA Decision on a VA Sleep Apnea compensation claim. The Veteran was represented in the case by the Hawaii Office of Veterans Services.
I know very little about the Hawaii Office of Veterans Servicees – if you do know them, please introduce me…I was impressed by this strategy and would like to meet the representative that used this strategy.
The Veteran served from 1980 to 1984, and had NO diagnosis of Sleep Apnea during his military service – in fact, he wasn’t diagnosed until 16 years after service.
This is very common in a VA Sleep Apnea claim – this condition may begin with an event today, but not develop into full-on Obstructive Sleep Apnea for years, or decades.
Many folks believe that when there is a long stretch of time between service and a diagnosis with a medical condition, that there cannot be a connection between the two.
I have found that MOST of the time the folks that believe this have 2 things: very little understanding of how the body really works and a powerful desire to demonstrate their lack of knowledge to the world.
The VA Doctor in this case issued a C&P Exam opinion that said basically this: because the Veteran wasn’t diagnosed until 20 years after service, and there is no record of treatment in those 16 years, there can be no connection of sleep apnea to service.
Wrong answer doc….time to deploy the 3-Step Strategy.
Step 1: The Veteran challenged the adequacy of the exam.
He rightly pointed out to the Board that any C&P exam that the VA offers must be ADEQUATE. Read what the Judge said:
“The VA examiner based her negative nexus opinion exclusively on a lack of evidence of treatment for sleep apnea while in service, or for 16 years after service…[r]elying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate.”
CHECK…Step 1 accomplished.
Step 2: The Veteran then added lay evidence to bolster his position.
The Veteran believed that his sleep apnea was connected to his military service. So he added credible lay statements showing a chain of sleep apnea symptoms from service to diagnosis.
Now, we don’t know WHAT these lay statements say – the Judge doesn’t quote them directly – but we do know that these statements included evidence that the Veteran had loud snoring in service and that it continued after service.
Be very, very careful if you are using a history of chronic snoring as a way to connect Sleep Apnea to service – snoring is only 1 small symptom of Sleep Apnea – you need a LOT more than just snoring to service connect sleep apnea.
Read what the Judge said about these statements:
“A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses….the credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence.”
See what happened there?
Look closely at the second half of that quote….the BVA Hearing official basically says that credible lay evidence trumps a crappy medical opinion. LESSON: The Veteran would NOT have accomplished Step 2 if he hadn’t FIRST undercut the adequacy of the VA C&P exam.
CHECK…Step 2 accomplished.
Step 3: The Veteran got a solid medical opinion from his Treating Physician.
Now, a lot of you go out and get letters from your treater, and you STILL do not get the favorable VA Award letter you’ve been fighting for.
You conclude that the system is “rigged”, the raters are delaying for the sake of delay, and the VA doesn’t take care of Veterans. And while I agree with you on all 3 points, that’s NOT the reason that the VA rejected your treating physician’s letter.
Look at what the Veteran’s doctor in this case did: the doctor indicated that the Veteran reported sleep apnea symptoms “for the majority of his adult life…recalls an evaluation for snoring while in the navy, and reports a motor vehicle accident due to drowsiness while in the military.”
The physician opined that, based upon the Veteran’s reported symptoms and recent sleep studies, the Veteran “had sleep apnea during his military career.”
If you’ve read my Sleep Apnea Field Manual, you know how important that kind of opinion letter is – connecting the symptoms and diagnosis back to service is VITAL to getting a VA Award Letter in a Sleep Apnea claim.
And read what the BVA Hearing Officer said about the doctor’s opinion:
“The Board finds that this opinion is probative. In this regard, the Board finds credible the history upon which the opinion is based. Additionally, the Board finds that the rationale is sound in that it was based on credible history, as well as diagnostic testing by way of sleep studies.”
CHECK…Step 3 accomplished.
With all 3 steps accomplished, what was the outcome?
A very rare outcome at the BVA – the Board Hearing Officer GRANTED service connection for sleep apnea by finding that competent and credible lay evidence outweighed an inadequate VA exam, when coupled with a solid medical opinion from the Veteran’s treating physician.
If you take NOTHING away from this post, the last sentence is what I want you to remember. It bears repeating:
Competent and credible lay evidence outweighs an inadequate VA C&P exam when coupled with a solid medical opinion from the Veteran’s treating physician.
This is a very long post, and it has a TON of information in it – be sure to tell me in the comments below if you understood it, or if I lost you.
And if you tried a strategy like this in your VA Claim, and it resulted in a VA Award letter, tell me all about it in the comments section or send me an email if you’d prefer!
If you want to read the BVA Decision this post is based on for yourself, just click this link to open it in a new tab.
Yes, I understood this post. It flows right to reason and justice. BUt I also see your point about not giving up and really thinking this out and gathering the required supporting documents and writing an effective and informative response. My last service organization really left me hanging out to be stomped on. Man do I miss my original Veteran Service Officer from my hometown. He did an excellent job on my behalf. Maybe it is he who you seek to meet. Last I knew he went from Sonoma County California to Monterey California back some twelve years ago. It wouldn’t surprise me if he took a spot that opened up in Hawaii.
Good discussion, esp since I have a BVA video hearing on 10 Jul 15. I plan to use some of your words in my statement to the BVA law judge, esp about the inadequacy of my C&P Exam. Just wish I had this insight seven years ago when I started this process. Or better yet, if I better understood the VA claim process when I submitted my original claim in 1993, which the VA denied in its entirety. At that time, I believed if my Service medical records showed repeated treatments for claimed conditions, the VA would grant appropriate compensation. I couldn’t have been more wrong.
good post – I might add to this that if the Veteran has
type II you can get sleep apnea as a second condition . Yes Type II causes sleep apnea – not hard to prove have had several claims approved this way