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
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.