Veteran Disability Claims: Nexus and IMO Letters
I provide Independent medical opinion ( IMO Letters) to disabled veterans
In addition to being a lawyer I am an academic transplant surgeon with almost thirty years of medical experience. I provide Independent Medical Opinions (IMO Letters) to disabled Veterans in a form of a Nexus letter combining the best medical analysis and research with knowledge of the veteran’s disability law. My purpose is to provide you with a nexus letter which will convince the DRO or the BVA judge that you are indeed disabled due to injuries incurred during your military service
What is Nexus?
There are three steps involved in a claim for service connection. a. First, the veteran must present satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease . Second, the VA must determine whether that evidence is consistent with the circumstances, conditions, or hardships of such service. The third and final requirement is demonstrating that there is a nexus (a link or a connection) between the current disability and the event that occurred during the period of military service.
What are IMO Letters?
To meet the nexus requirement, the veteran must have an evaluation by a physician that will establish that the veteran is indeed disabled and also that his disability is as likely as not caused by his military service. There are two methods used to establish such a nexus; one is independent medical examination and the other is independent medical opinion. The first involves an actual examination of the veteran at the doctor’s office. The second method does not require a physical examination, but does require an experienced physician who will carefully review the entire medical record and the C&P examination, and then perform independent and thorough medical research relevant to the issues of the veteran’s case. The expert drafts an analysis of this information, presenting the medical history in a way that best supports the claim.
Why do I need Nexus / IMO Letters for my Veteran Disability claim?
The Institute of Medicine (IOM) was asked by the Veterans’ Disability Benefits Commission to study and recommend improvements in the medical evaluation and rating of veterans for the benefits provided by the Department of Veterans Affairs (VA) to compensate for illnesses or injuries incurred in or aggravated by military service The IOM noted that inadequacy of the raters employed by the VA: “Few raters have medical backgrounds. They are required to review and assess medical evidence provided by treating physicians and VHA examining physicians and determine percentage of disability, but VBA does not have medical consultants or advisers to support the raters. Medical advisers would also improve the process of deciding what medical examinations and tests are needed to sufficiently prepare a case for rating” General (OIG) reported that 24 percent (95,000 of 405,000) of the C&P examinations had been incomplete in FY 1993, a percentage that had not improved much in FY 1996, when 22 percent were incomplete (VA, 1997b). The IOM found also that For example, of the spine exams requested during the second quarter of fiscal year 2005, 32 percent of the exam requests had at least one error such as: •not identifying the pertinent condition; •not requesting the appropriate exam;
What I do:
1) I Review medical charts and service records to establish service connection
2) I Review medical records and C&P examinations to establish appropriate ratings
3) I Research BVA and CAVC archives for electronic records relevant to your case
4) I Perform detailed research of medical literature
5) I write a detailed nexus letter summarizing your medical records, the veteran claim file, and provide a medical analysis using the latest medical scientific literature as well as analysis of the Veteran rating table. I include exhibits which facilitate the review of your case by the DRO or the BVA judge
What is the cost of Independent Medical opinion (Nexus / IMO Letters) ?
This is a service which I provide as a physician rather than a lawyer . As such I do not collect a percentage of the past due benefits if we win but rather need to be paid upfront. The typical cost is $1500
What we do not do:
I do not perform physical exams. This would best be done by a personal physician.
Samples of my Independent Medical opinion ( IMO/Nexus)
One of my clients posted the IMO I wrote for him. see the sample
To further assess the quality of my medical and legal analysis I can share with you briefs of cases I litigated before the Court Of Appeals ( CAVC ) see also Representation before the Court of Appeals for Veterans CAVC
The names of the clients have been adducted
What our clients say about our Independent Medical opinion (Nexus / IMO Letters) ?
The VAWatchdog.org recommendations for IMO
The Independent Medical Examination & Independent Medical Opinion VAWatchdog recommends that every veteran consider seeking an Independent Medical Examination (IME) or an Independent Medical Opinion (IMO) for their VA disability benefits claim. The VA has become increasingly difficult to navigate. Because of the difficulty in receiving a fair decision from VA, we at VAWatchdog have recognized that veterans who have even the simplest claims can no longer rely on a fair decision. Every veteran should prepare to have expert help as they develop their claim. This includes legal representation by a VA accredited attorney as well as expert opinions from highly skilled and well qualified physicians. There is a difference in the IME and the IMO. The IME requires your physical presence in front of the examining physician. IMO Letters are based on the opinion of the physician after he has thoroughly reviewed your records. It is our opinion that the IMO may be the better choice in most cases. To write an acceptable IMO is not a simple task. The physician must first understand the law that applies to the claim. The physician must know the details of how disabling conditions may affect the overall quality of life of the veteran patient. Disability law is not something that most physicians are trained in. Having said that, VAWatchdog currently recommends only two physicians for IME/IMO work. Each of these doctors is expert in the arena of disability medicine. We urge veterans to review their claims with one of these physicians and to seek the help of an attorney Dr. David Anaise is a physician as well as having a license to practice veterans law. In interviews with Dr. Anaise we’ve asked and learned much about him. In discussions with Dr. Anaise he’s told us: “In addition to being a lawyer, 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 have authored three book chapters, three patents and 106 research papers published in peer reviewed medical journals. My background in medicine and research makes me well qualified to thoroughly review and present your disability case. I obtain, study and analyze all your medical records and perform independent medical research relevant to the issues of your case. I then present an analysis presenting your medical history in a way that best supports your claim. The submission all the medical report which does not contain an actual physical examination or even the submission of a medical treatises requires the board to address the reports or the medical treatises. In a decision rendered by Judge Bartley In Bowers v Shinseki NO. 11-3022 Judge Bartley was critical of the BVA’s failure to address a medical treatises provided by the veteran. The BVA held that such report was merely laypersons opinion. Judge Bartley held, ‘As a layperson, the Veteran is not competent generally to render a probative opinion on a medical matter. Mr. Bowers, however, was not offering his own subjective opinion as to the growth rate of gallstones; he was repeating the data reported in professional medical treatises he submitted. Certainly, a layperson is competent to report information provided by a medical professional. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007) (holding that a veteran is competent to repeat a medical diagnosis and report observable symptoms). In labeling the veteran’s report of the growth rate of gallstones as incompetent lay opinion, the Board avoided addressing the substance of the medical treatise evidence Mr. Bowers submitted, just as the Board failed to address those treatises directly. Thus, the Board’s failure to address the medical treatise evidence that was favorable to Mr.Bowers was not harmless. See Sanders and Caluza, both supra. As such, remand is warranted”
The usefulness of IMO Letters to establish rating for sleep apnea secondary to PTSD
In a recent decision by the BVA (FEB 2 8 2014 DOCKET NO. 11-09 193) the board reiterated the importance of IMO Letters supported by medical literature in establishing service-connected disability for sleep apnea secondary to PTSD the board held: “The Veteran had a VA examination in October 2009. The Veteran reported sleep apnea with an onset two to three months earlier. The VA examiner opined that, per medical literature review, sleep apnea is not caused by or aggravated by the Veteran’s PTSD. The VA examiner stated that the basis of the opinion was the review of medical literature. The literature was not specified. At the Board hearing in March 2012, the Veteran testified that his therapist has told him that PTSD aggravates sleep apnea because he has nightmares and dreams in his sleep. The Veteran testified that he has anxiety attacks in his sleep that keep him from catching his breath. The Veteran testified that he has used a CPAP machine for about four years. In this case, there is positive medical evidence which links the Veteran’s current sleep apnea to service-connected PTSD via aggravation. The most probative opinion is that of Dr. T which not only provided a link between the Veteran’s PTSD and sleep apnea (by aggravation) but also was supported by submitted medical literature. Despite the negative VA opinion, in light of the positive medical opinions from the private psychologist, the Board finds the evidence is at least in equipoise regarding whether the Veteran’s sleep apnea is aggravated by service- connected PTSD. Accordingly, resolving all reasonable doubt in the Veteran’s favor, service connection for sleep apnea is warranted. – Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). ORDER Secondary service connection for sleep apnea is granted
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].