NEXUS LETTERS AND INDEPENDENT MEDICAL OPINION (IMO) FOR DISABLED VETERANS

What are Nexus Letters?

There are three steps involved in a claim for service connection according to Caluza v. Brown, 7 Vet. App. 498. First, the veteran must present satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease [38 U.S.C.S. 1154(b)]. 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 (requirement #1) and the precipitating disease, injury, or event that occurred during the period of military service (requirement #2). Contact Dr. David Anaise to discuss Nexus Letters and your specific needs.

Requirements for an Adequate Medical Opinion – Why is a Veteran’s Primary Physician’s Opinion Often Insufficient?

James D. Ridgway was a Senior Law Clerk for a member of the United States Court of Appeals for Veterans Claims. He wrote an excellent article on this subject entitled “Lessons the Veterans Benefits System Must Learn on Gathering Expert Witness Evidence”.  The article is based on his thorough knowledge of the veteran disability system as well in depth research of the relevant legal case law and statutes.  The following are excerpts from his work:

“At the most basic level, an adequate medical opinion is one that allows the VA adjudicator’s “evaluation of the claimed disability [to] be a fully informed one.” The standard is only understood by looking at how the evidence will be evaluated. A defining characteristic of the VA adjudication system is that the initial decision-makers at the fifty-seven regional offices (“ROs”) are neither medical professionals nor attorneys. Because VA adjudicators are not medical professionals, an adequate opinion is one that can be weighed and evaluated by a layperson…

Although a veteran enjoys the benefit of the doubt, the adjudicator may not be willing to grant benefits based upon speculation that a current condition is related to service. In practice, this means that a letter from the veteran’s doctor stating merely that he or she believes that the veteran’s current condition is related to some in-service injury or disease will not be sufficient to grant benefits. An adjudicator cannot simply rely on the assertion of a veteran’s treating physician.

Rather, the medical opinion must provide sufficient detail to make clear its factual basis and the theory of causation, and thereby convince the adjudicator that there is a basis for granting the claim. An adequate medical opinion must meet numerous criteria. First, the opinion should state its factual premise in detail, including the precise nature of the in-service disease or injury and whether there have been any intervening post-service injuries or diseases. This statement of facts should indicate its sources, including to what extent the facts are taken from available medical records, versus history supplied by the veteran. The degree to which an opinion discusses and accounts for the veteran’s documented medical history is a relevant factor. VA may reject a medical opinion as having no value because of an inaccurate factual premise, and an incomplete factual premise diminishes the weight that the opinion might otherwise be assigned.

Second, the opinion should state the diagnosis of the veteran’s current condition. The opinion should list each symptom attributable to the veteran’s current condition and when the condition first manifested. The physician should also document any objective test results supporting the existence, severity, or duration of any symptom. If applicable, the opinion should note specifically whether the veteran’s symptoms have been continuous since service. If the condition is chronic, the opinion should discuss whether the available evidence is sufficient to determine that the condition first manifested as chronic during service. If appropriate, it should also address prior conflicting diagnoses and the possibility that some symptoms may be attributable to a different condition.

Third, the medical opinion should state why the physician believes that the veteran’s condition relates to service. The physician must state this opinion in terms that make clear that the expert believes that it is at least as likely as not that a relationship exists. If the theory of causation is not generally accepted in the medical community, then it may be necessary for the doctor to note any research that was conducted and what authorities support the stated theory of causation. A medical opinion should address prior negative opinions, and the rationale for rejecting a contrary opinion is an important factor when a lay adjudicator is weighing the evidence.

Additionally, the Secretary’s duty to assist requires that he obtain an opinion that discusses every theory of causation raised by the record. Therefore, one of the most frequent reasons that VA rejects an opinion is that the opinion addresses only direct service connection without analyzing whether there was continuity of symptomatology, secondary service connection, or another alternative theory.

It may seem at first blush that the requirements are somewhat onerous, but it is important to remember that they are neutral. Although they may make it difficult for a private physician to provide an opinion in support of a claim, these requirements also make it difficult for VA to deny a claim based upon a less than thorough opinion. Ultimately, the purpose of the requirements is to make sure the decision is reliable regardless of outcome. However, it is easy to see why it may be difficult for a private physician to provide a medical opinion that is adequate to support an award of benefits. Unless a doctor has experience testifying as an expert, he or she may not understand how much detail is necessary to provide a medical opinion that is adequate and persuasive to a lay VA adjudicator. What is more difficult to understand is how the VA has reached the 21st century without developing procedures for assisting private physicians to render adequate opinions for the veterans that they treat.”

The Importance of Published Medical Reports (Treatises) in IMO and Nexus Letters

Proving a nexus between a veteran’s disability and his military service requires both factual and scientific evidence.  In most cases, especially for the veterans who served in Vietnam, service records are difficult to obtain; most records have been either damaged or lost.  Without these records it is difficult to prove that a current disability was caused by injuries that occurred 40 or 50 years ago.

Most veterans, however, have already established service connection for some disabilities and the question is usually whether their current disabling condition is related to the service-connected disabilities.  The determination of secondary disability is no longer factual, but rather strictly a scientific question.  A veteran only needs to show that the scientific community supports his claim that condition x is related to his service-connected disabilities.  To deny a veteran’s claim, the VA must have an equally qualified scientist state that there is no scientific connection between the claimed condition and the service-connected conditions.  Even then, the VA must accept the IMO based on the benefit of the doubt doctrine.

The Veteran’s Court has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998)

A submission of a scientific report, even by a layperson, requires the Board to address the report, or medical treatise.

In a decision rendered by Judge Bartley in Bowers v. Shinseki No. 11-3022, the judge was critical of the BVA’s failure to address medical treatises provided by the veteran.  The BVA held that such reports were merely layperson’s 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) (ruling 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.”

BVA Decision Held that Obstructive Sleep Apnea (OSA) is Secondary to Posttraumatic Stress Disorder (PTSD) Based on this Author’s IMO

DOCKET No. 11-01 922          Date: 03/28/2016

“A June 2014 letter from Dr. D. Anaise included an opinion that the Veteran’s sleep apnea was more likely than not secondary to his service-connected PTSD.  The letter cited medical literature as evidence in support of the opinion, and included such medical literature in support of the Veteran’s claim.  Such evidence was also in support of a causal relationship between sleep apnea and PTSD.

After a review of the evidence of record, resolving all reasonable doubt in the veteran’s favor, the Board finds that the preponderance of the evidence supports that the Veteran’s obstructive sleep apnea is secondary to his service-connected PTSD…

The Board notes that the September 2012 VA opinion against the Veteran’s claim cited the lack of medical literature in support of a causal relationship between PTSD and sleep apnea as a basis for concluding the Veteran’s sleep apnea was less likely as not caused by or a result of his PTSD.  In contrast, the June 2014 letter from Dr. D. Anaise indicated there was a significant volume of medical literature to support the Veteran’s claim, and cited to such evidence in support of his opinion that the Veteran’s obstructive sleep apnea was more likely than not secondary to his service-connected PTSD.  The Board finds the June 2014 letter and opinion from Dr. D. Anaise to be more probative and persuasive in this case as it was based on a review of the Veteran’s treatment records, cited supporting medical literature, and was provided by a medical expert competent to provide an opinion as to the etiology of the Veteran’s sleep apnea. Hence, entitlement to service connection for obstructive sleep apnea as secondary to service-connected PTSD is warranted.”

 

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