Responding to C&P Examiner Medical Opinions
Welcome to the C&P examiner Hall of Shame…
C&P Examiners say the darndest things. It would be cute if it wasn’t often so detrimental to Veterans getting a fair decision on their claim. In my work I am often called upon to respond to unfavorable C&P medical opinions. The responses below have been edited to remove personally identifiable information, and this includes references to specific medical evidence. In addition, I have combined together some responses. I tried to remove out duplicate responses but there are some places where you’ll see I left in similar responses.
In the C&P examiner Hall of Shame Dr. Finnerty writes way more than you ever wanted to read about C&P examiners’ Mayo Clinic website and UpToDate fueled medical opinions. Talking about secondary conditions being “separate entities entirely” and arguing over the burden of proof with association/correlation versus causation is just the start. Want examples of how Dr. Finnerty addresses unfavorable C&P examiner opinions? Now you probably have way more than you actually wanted.
These are not necessarily perfect, and of course they don’t involve the specific medical evidence in a claim due to protecting privacy, but it gives you a chance to see a sample of the types of responses I may give when there is a negative C&P opinion.
Many times when I review a case, the Veteran has already been denied at least one time in the past. On those cases I will review the rating decision as well as the DBQ and medical opinion from the C&P examiner and address those opinions as part of my medical opinion.
If I write a favorable opinion and then the Veteran’s claim ends up being denied, I will stand by my opinion. The Veteran can send me any additional evidence I hadn’t reviewed—especially the rating decision as well as the DBQ and medical opinion from the C&P exam the VA likely sent the Veteran to after my opinion—and I will write a response free of charge. Of course it can take some time for the Veteran to get those records (sometimes requiring a FOIA request). It also will take some time before I am able to write the response, depending on my workload at the time.
I have read a significant number of negative medical opinions from C&P examiners at this point. Many of the opinions appear to be re-used and copied from examiner to examiner. I’m not going to bother to rehash those common opinions here, but I am going to provide examples of responses I gave to them (you should be able to get a sense of what the opinion was based on my responses).
Sometimes it isn’t just the C&P examiner though, it is a generic, stock response in a rating decision. For example:
The rating decision clearly did not make a genuine attempt to provide a rationale addressing my favorable opinion. Simply using the oft-repeated, stock phrase “the medical opinion we received from the VA Medical Center was more persuasive than your private physician’s opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale” is not sufficient when that rationale is not even accurate. I am a psychologist (not a physician) and the opinions were not VA Medical Center opinions, they were contract nurse practitioner opinions. Using “and/or” also does not imply a specific rationale relevant to the Veteran’s own evidence. The decision suggested that the contract examiner did a thorough review of the evidence, however this is clearly false. The contract examiner did not document reviewing or addressing my favorable opinion- this is contrary to VA policy. Given that the nurse practitioner did not even document reviewing my favorable opinion let alone provide a rationale addressing it, the VA failed to provide a sufficient rationale addressing my favorable opinion. This alone reflects a clear and unmistakable opinion.
Using the same copy-and-pasted language over and over again to summarily discount favorable opinions without addressing the substance of those favorable opinions reflects that the VA is engaged in a pattern of behavior where it arbitrarily and capriciously dismisses favorable opinions without genuinely addressing them. Any rationale which only uses this copy and pasted language to address a favorable opinion should immediately be considered suspect, disingenuous, and likely arbitrarily and capriciously conducted. The VA can’t simply disregard private medical opinions because they are private medical opinions.
Here is a long one. There have been concerns about fraud and whether forensic practitioners/ expert witnesses are “hired guns” for as long as I have worked in the disability field (over 20 years). Sometimes C&P examiners may get a bit out of control with their obvious bias, however. Here is an example of a response I made to a C&P opinion where the C&P examiner didn’t like that I was a psychologist who was paid by the Veteran (essentially an expert witness paid by the Veteran as opposed to one paid by the VA):
I reviewed the medical opinion from Dr. Joe Blow which was based on a records review. The examiner, who is not the Veteran’s treatment provider, started his opinion by noting I was also not the Veteran’s treatment provider and that I was in a “different state.” However, the medical evidence I reviewed is the same no matter what state the Veteran is in. The scientific evidence is the same no matter what state the Veteran is in. The examiner then concluded that “by definition, Dr. Finnerty’s report is biased.” However, this is false. This statement clearly reflects that the examiner has little training or understanding of forensic practice, or that the examiner was being disingenuous and adversarial. As I noted in the biographical statement provided in my prior opinion, forensic examiners like myself are, by definition, ethical, impartial and independent:
Dr. Finnerty is a forensic specialist and adheres to the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct as well as the APA’s Specialty Guidelines for Forensic Psychology (https://www.apa.org/practice/guidelines/forensic-psychology). These guidelines include the responsibilities of integrity, impartiality and fairness and note: “When offering expert opinions to be relied upon by a decision maker, providing forensic therapeutic services, or teaching or conducting research, forensic practitioners strive for accuracy, impartiality, fairness, and independence. Forensic practitioners recognize the adversarial nature of the legal system and strive to treat all participants and weigh all data, opinions, and rival hypotheses impartially. When conducting forensic examinations, forensic practitioners strive to be unbiased and impartial, and avoid partisan presentation of unrepresentative, incomplete, or inaccurate evidence that might mislead finders of fact. This guideline does not preclude forceful presentation of the data and reasoning upon which a conclusion or professional product is based.” While it would be convenient if Veterans in need of first or second opinions on mental health related claims could seek them from treatment providers at the VA, VA policy outlined in VHA Directive 1134(2) Provision of Medical Statements and Completion of Forms by VA Health Care Providers recommends that VA mental health treatment providers not complete forms such as “mental health DBQ’s” in order to “maintain the integrity of the patient-provider relationship.” Therefore, both the VA and Veterans often must seek forensic specialists outside of a treatment relationship to provide opinions related to their case.
The examiner leveled baseless ethics accusations at me in an unprofessional manner before even attempting to review the substance of my opinion. He certainly offered no evidence that I acted in an unethical manner despite his accusations.
The examiner provided the trite statement that “association is not causation.” However, this is not persuasive nor does it address the examiner’s actual task. The examiner’s task was to do more than offer a trite statement from the first chapter of a Statistics 101 textbook. The examiner’s task was to analyze all of the relevant evidence in the context of the Veteran’s actual burden of proof- not act as if the Veteran’s burden of proof was 100% certainty of causation. The examiner was not tasked with opining on 100% certainty of causation, but at least as likely as not. The examiner’s rationale was inadequate and not policy compliant. It should not be considered sufficient for rating purposes.
The examiner noted that Dr. Finnerty admits [emphasis mine] that weight is a “significant factor” in OSA. He noted that I opined that his weight was related to his mental health difficulties without providing any “evidence” of this. This is a glaring misrepresentation of my opinion. As I noted in my prior opinion:
Psychiatric difficulties negatively impact motivation (ex: reducing activity) and can lead to overeating. His psychiatric difficulties increase the risk for weight gain, which in turn further increases the risk for obstructive sleep apnea. The Veteran’s weight gain occurred in the context of his mental health. Mental health difficulties are associated with binge eating symptoms in both men and women; [ex: see Braun J, El-Gabalawy R, Sommer JL, Pietrzak RH, Mitchell K, Mota N. Trauma exposure, DSM-5 posttraumatic stress, and binge eating symptoms: results from a nationally representative sample. The Journal of Clinical Psychiatry. 2019;80(6):19m12813]. Hoerster, et. al. (2015) noted “depression symptoms are associated with binge eating among US Iraq and Afghanistan veterans” [see Eating Behaviors; Volume 17, April 2015, Pages 115-118]. Mental health difficulties, by definition, can impact eating behaviors and activity levels. It is notable that major depressive disorder in the DSM-5-TR (pg. 183) lists diagnostic criteria such as “markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day…” and “significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day…” and “psychomotor agitation or retardation,” and “fatigue or loss of energy nearly every day” and others. PTSD (pg. 302) includes criteria like “markedly diminished interest or participation in significant activities). Overeating and inactivity are symptoms of mental health difficulties which lead to weight gain and obesity. The Veteran’s psychiatric difficulties not only directly impacted the Veteran’s sleep apnea, but also indirectly by increasing the likelihood of weight gain. This is still a direct and proximate cause. Weight gain is not simply a comorbidity; weight gain is a direct, physical, anatomical effect of mental health difficulties.
His mental health difficulties at least as likely as not caused the direct effect on his anatomy of weight gain and obesity. Obesity is a significant risk factor and it along with his mental health issues itself are the most likely explanation for the presence of his sleep apnea. There is no support for the idea that he would have had sleep apnea in the absence of his mental health difficulties and obesity. Sleep apnea does not cause itself. It is at least as likely as not that his mental health issues caused his weight gain and obesity which caused his sleep apnea. He likely would not have otherwise developed sleep apnea.
It is notable that the adversarial C&P examiner did not provide any meaningful, specific evidence from the Veteran’s medical records that his weight gain was not due to his mental health difficulties. Instead, he offered a nebulous rationale unrelated to the Veteran’s own medical evidence.
The examiner stated that weight gain is “multifactorial, and related to many factors” [sic] (here the examiner’s rhetoric gets out of control as he essentially just said the same thing twice- of course multifactorial means many factors). However, the examiner’s task was to do more than offer a vague list, it was to address this based on factors that appear in the Veteran’s own medical evidence, factors such as the psychological issues I addressed as an expert in psychological issues. The examiner noted that this list of factors includes “genetics, diet choices, exercise patterns, etc.” Of course, while the examiner attempted to say I offered no specific evidence related to the Veteran, the examiner did not burden himself with the same requirement. The examiner noted “genetics” yet did not describe any specific gene or gene combination that causes obesity, nor did he identify any specific gene or gene combination that the Veteran actually has been shown to possess that causes obesity. The examiner noted diet “choices” and exercise patterns, but failed to address the fact that my opinion focused on these as being heavily impacted by his mental health difficulties- and cited scientific research supporting my conclusions. These are not simply driven by choices, these are behaviors that are heavily impacted by mental health symptoms. Given that psychology is often noted to be the study of human behavior and that I am an expert in behavioral health, I am the most qualified expert to comment on these behaviors. The examiner’s stigma-driven, biased opinion reflects that he clearly lacked the relevant expertise in mental health conditions to address this question. He focused on the Veteran’s “poor” diet “choices” and “lack” of exercise which likely “contributed in a significant way” to his obesity. This is literally the same opinion I gave, with the exception that the non-expert C&P examiner is blaming the Veteran for his mental health symptoms. Instead of recognizing his food intake behaviors and activity levels for what they are—driven by mental health symptoms—the non-expert, adversarial C&P examiner is blaming the Veteran for his “choices” that he considers “poor,” and calling the Veteran out for what the examiner clearly views as character issues. This is a stigma-driven and fallacious rationale which is not consistent with VA policy. The examiner is attempting to singlehandedly re-write VA policy and re-adjudicate legal findings related to obesity as an intermediate step, yet this is not acceptable. The examiner’s bias related to mental health conditions clearly reflects a significant lack of expertise in behavioral health. The examiner failed to even address the extensive scientific evidence that reflects that his mental health conditions at least as likely as not impact both dietary choices and activity levels. If we were to extend the examiner’s non-expert reasoning to other mental health symptoms one would expect that the examiner would view the impact of mental health symptoms as a choice that should not be rated, since, for example, it didn’t preclude all forms of physically interacting with others or all forms of concentrating or all forms of dealing with stress.
The examiner has placed an inappropriate burden on the Veteran which is not in keeping with the court’s determination that obesity can be used as an intermediate step. The VA cannot simply sidestep its court mandated duties by relying on non-expert, stigma-driven, adversarial opinions from examiners who are clearly not willing to consider obesity as an intermediate step. The opinion should be disregarded as not sufficient for rating purposes and relying on it was a clear and unmistakable error. It is at least as likely as not that his mental health difficulties caused the obesity which the examiner agrees caused his sleep apnea.
In the above example, the examiner actually had reviewed my favorable opinion. It almost seems more common that the examiner did not even review my favorable opinion or even acknowledge that it was in the c-file. This is because some examiners likely perform a very cursory review and just use the same copy-and-pasted language over and over again regardless of what the Veteran’s medical evidence says. In these instances I will be sure to note something like… “The contract examiner failed to address my XX/XX/XXXX opinion which was favorable to the Veteran’s claim; failing to address my favorable opinion is contrary to VA policy and also reflects that the contract examiner did not perform a thorough review of the medical evidence. Relying on this inadequate opinion reflects a clear and unmistakable error.”
I am of course not an attorney/accredited representative and don’t practice law, but it never hurts to call a spade a spade from my perspective as a psychologist.
“Definitive causation” versus the Veteran’s actual burden of proof
Relying on this examiner’s opinion was also a clear and unmistakable error as it was not sufficient for rating purposes. The examiner documented using an inappropriate burden of proof that was higher than at least as likely as not; i.e., the examiner documented requiring “definitive” causation rather than at least as likely as not. Merriam Webster defines the word definite as “free of all ambiguity, uncertainty, or obscurity,” and yet this is not what the examiner’s task was- the examiner’s task was to opine on at least as likely as not. The examiner also did not apply this same burden of proof to their own opinion, as there is no evidence of “definitive” causation that “male gender” causes sleep apnea, yet the examiner had no problem using this risk factor in an antagonistic and hostile manner against the Veteran’s claim.
More burden of proof talk
The examiner also sought a “causal relationship” among the “medical literature,” yet she failed to cite any actual literature. In addition, scientific evidence tends to use a burden of proof of 95% confidence, not at least as likely as not. The examiner’s task was not to use a burden of proof of 95% to 100% certainty of causation; it was at least as likely as not (50% or greater). Her opinion should be disregarded as not sufficient for rating purposes.
And more…
As cited in the narrative above, examiners often note that obesity/BMI/excess weight is the “strongest risk factor” associated with obstructive sleep apnea, yet they should also consider the findings related to the BMI from Shah, et. al. (2024). The authors indicated that the severity of PTSD symptoms, as measured by the PTSD checklist, were “remarkably similar to BMI” as it relates to being a risk factor for sleep apnea. Examiners should also consider the severity of PTSD as an independent risk factor given that the scientific research reflects that the severity of PTSD symptoms as a risk factor for OSA is “remarkably similar to BMI.” The relationship between his PTSD and sleep apnea is therefore likely not just a vague association or correlation (and the Veteran’s burden of proof is not 100% certainty of causation anyway), but a multiplicative interaction where his PTSD works as both an independent risk factor leading to sleep apnea and a factor worsening his weight gain which also contributes to the development and worsening of sleep apnea.
Simply stating some evidence relates to an “association” or a correlation is not a sufficient rationale. The Veteran’s burden of proof is not 100% certainty of causation (or the 95% probability often used in research studies), it is at least as likely as not. Rationales must relate to an analysis in this context in order to be sufficient, not a requirement of closer to 100% certainty of causation. I have evaluated the medical evidence and scientific evidence related to the Veteran’s case and his burden of proof has been met.
His mental health difficulties at least as likely as not caused his weight gain and obesity by impacting his food intake behaviors and activity levels. His obesity was a substantial factor in causing his obstructive sleep apnea. It is at least as likely as not that the Veteran’s sleep apnea is the result of and would not have occurred but for the mental health difficulties and obesity associated with his mental health difficulties.
No relationship?
The VA’s decision relied upon an opinion that PTSD and sleep apnea were not related- that there was no “link,” yet this is disingenuous and unacceptable given that the VA’s own website indicates that they are related. There is ample scientific evidence refuting this unsupported statement. It is notable that this statement is even refuted by the VA’s own website- the VA’s own website indicates that sleep apnea has a “relationship with PTSD” (https://www.research.va.gov/topics/respiratory.cfm#research8).
Sleep apnea is only “anatomical?”
The decision used an inappropriate burden of proof related to causation that was higher than at least as likely as not. It mischaracterized the research and current scientific perspective related to sleep apnea, particularly in relation to hyperarousal. In fact, a low threshold for arousal during sleep in relation to airway narrowing is viewed as one specific phenotype of OSA [ex: see Osman AM, Carter SG, Carberry JC, Eckert DJ. Obstructive sleep apnea: current perspectives. Nat Sci Sleep. 2018 Jan 23;10:21-34 and Eckert DJ. Phenotypic approaches to obstructive sleep apnoea – New pathways for targeted therapy. Sleep Med Rev. 2018 Feb;37:45-59]. As noted by Eckert (2018) “People develop obstructive sleep apnoea (OSA) for different reasons. The ability to understand these reasons, easily identify them in individual patients, and develop therapies that target one or more of these reasons are the keys to unlocking new approaches for the treatment of OSA. In line with this approach, recent advances in OSA pathogenesis using upper airway and respiratory phenotyping techniques have identified four key causes of OSA. A narrow or collapsible upper airway (‘impaired anatomy’) is the primary cause. However, the anatomical contribution to OSA varies substantially. Indeed, impairment in pharyngeal anatomy can be modest and in many patients (∼20%), pharyngeal collapsibility asleep is not different to people without OSA. Thus, non-anatomical factors or ‘phenotypes’ that modulate pharyngeal patency are crucial determinants of OSA for many people. These include impairment in pharyngeal dilator muscle control and function during sleep, increased propensity for awakening during airway narrowing (low respiratory arousal threshold) and respiratory control instability (high loop gain). Each phenotype is a potential therapeutic target.” The Veteran’s PTSD at least as likely as not caused this low threshold for arousal phenotype of sleep apnea.
The absurd straw man argument- a common logical fallacy (“a separate entity entirely”)
In this argument, which is a statement copy and pasted by multiple different examiners at this point, they note that [insert medical condition here] is a separate entity entirely from [insert the other medical condition here].
Example response: The VA’s decision relied upon an inadequate opinion that “sleep apnea is a separate entity entirely” from PTSD; this argument is a fallacious, straw man logical fallacy which ignores the significant scientific evidence of a relationship. No one argued that sleep apnea and PTSD were “the same entity.” Sleep apnea is, of course, a separate entity from PTSD, but that does not mean that one disorder cannot lead to and/or substantially aggravate the other.
…and more fallacies
The rationale that “OSA is not a psychological disorder. It is a medical condition…” is irrelevant as the Veteran was not arguing this. This fallacious argument ignores the fact that psychological issues can in fact have an impact on the physical body. In addition, the American Psychiatric Association views what was termed “psychological disorders” as medical conditions.
It is fallacious for examiners to create a reductionistic and artificial distinction between “physiological” and “psychological” phenomena, particularly when arguing that psychological issues can’t impact the body. The chronic issues associated with PTSD can certainly, demonstrably have a multisystemic impact on health. Arguments that focus on mental health conditions as “psychological” rather than “physiological” are fallacious and attempt to avoid addressing the significant interactions that exist between the two. This type of fallacious argument ignores the fact that psychological issues can in fact have an impact on the physical body (for example, anyone who has had a panic attack will certainly tell you mental health conditions can impact breathing).
The rating decision questions the ability of a psychologist to give “non mental medical opinions for VA purposes,” yet this statement is inconsistent with actual VA policy (see M21-1, Part V, Subpart ii, Chapter 1, Section A – Principles of Reviewing and Weighing Evidence). In addition, while sleep apnea is a sleep disorder, it is also relevant enough to psychiatry that sleep apnea does in fact also appear in the psychiatric diagnostic manual. The American Psychiatric Association also included sleep apnea in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR); [for example see pages 429-443]. If a “mental” opinion was defined as something in the DSM-5-TR, then it is notable that sleep apnea does in fact appear in the DSM-5-TR. However, the statement about “non mental medical opinions” also reflects a fundamental misunderstanding of the questions on the case on the part of the examiner and the rater. The question involves the impact of PTSD so it is certainly not as simple as suggesting that there is no “mental” involvement in the case; if there were no “mental” issues involved in the question it would be as if the VA pre-judged the outcome of the case when making the referral. It is notable that the VA’s examiners lack any relevant expertise in either “mental” disorders or sleep apnea. It is also fallacious for examiners to create a reductionistic and artificial distinction between “physiological” and “mental” phenomena, particularly when arguing that psychological issues can’t impact the body. The chronic issues associated with PTSD can certainly, demonstrably have a multisystemic impact on health. Arguments that focus on mental health conditions as “mental” rather than “physiological” are fallacious and attempt to avoid addressing the significant interactions that exist between the two. This type of fallacious argument ignores the fact that psychological issues can in fact have an impact on the physical body (for example, anyone who has had a panic attack will certainly tell you mental health conditions can impact breathing. Some of the cardinal symptoms of a panic attack are a direct impact on physiological responses including breathing). The examiner clearly lacked a fundamental understanding of the impact of PTSD on the sleep apnea process and the significant involvement of a low threshold for arousal in sleep apnea. The examiner’s opinion should be disregarded as less persuasive.
“Does not preclude all forms of exercise?”
I disagree with the decision to deny his service connection for sleep apnea secondary to PTSD; the decision erred in finding the examiner’s opinion persuasive. The examiner opined that obesity was the best documented risk factor for OSA yet provided an inadequate and not policy compliant rationale related to obesity from PTSD. The examiner noted that PTSD “does not preclude all forms of exercise,” however this is a stigma-driven and fallacious rationale which is not consistent with VA policy. The examiner is attempting to singlehandedly re-write VA policy and re-adjudicate legal findings related to obesity as an intermediate step, yet this is not acceptable. The examiner’s bias related to mental health conditions clearly reflects a significant lack of expertise in behavioral health. The examiner failed to even address the extensive scientific evidence that reflects that his mental health conditions at least as likely as not impact both dietary choices and activity levels. This is a glaring failure, particularly when the examiner used an unacceptable bar of physically being precluded from all forms of exercise. If we were to extend the examiner’s non-expert reasoning to other mental health symptoms one would expect that the examiner would view the impact of mental health symptoms as a choice that should not be rated, since, for example, it didn’t preclude all forms of physically interacting with others or all forms of concentrating or all forms of dealing with stress. The examiner has placed an inappropriate burden on the Veteran which is not in keeping with the court’s determination that obesity can be used as an intermediate step. The VA cannot simply side-step its court mandated duties by relying on non-expert, stigma-driven opinions from examiners. The opinion should be disregarded and relying on it was a clear and unmistakable error.
Inconsistencies and mischaracterizing articles
The VES contractor noted “obesity is a well-established major risk factor for OSA.” He noted “the Veteran believes that his OSA is secondary to his obesity, and he attributes his obesity to his service-connected conditions, including anxiety, depression, sleep disturbances…” The VES contractor went on to write “while it is acknowledged that these conditions may have influenced” [sic] “the Veteran’s ability to engage in certain physical activities, it is important to note that the primary cause of obesity is an energy imbalance- specifically, the ingestion of more calories than the body expends. Although reduced physical activity can contribute to weight gain, diet plays a more significant role in the development of obesity.”
The examiner cited a 2012 article [see Hall KD, Heymsfield SB, Kemnitz JW, Klein S, Schoeller DA, Speakman JR. Energy balance and its components: implications for body weight regulation. Am J Clin Nutr. 2012 Apr;95(4):989-94] (which was a panel discussion but not an actual research study). However, the VES contractor mischaracterizes the nature of this article as if it emphasized diet over activity levels, whereas the article (which is available for free online if you would like to read it), emphasizes the interaction of the various components- i.e. an imbalance between the calories taken in and the calories expended. The article the examiner cited noted “it is important to recognize that the energy balance system is interactive and complex: a change in one component can affect one or more other components.” The examiner attempted to oversimplify this system. The examiner also failed to mention that this 2012 article he cited says “it has been shown that biological and psychological factors affect the components of energy balance.” It is interesting that while the VES contractor cited this article to try to support his assertion, he did not actually provide any direct quotes from it, and you would be hard-pressed to find any quotes in this article that support his assertion.
What the VES contractor actually wants to tell us is that the Veteran should be blamed for his dietary choices and his choice to not consider some other exercise that the VES contractor, who didn’t actually examine him, asserts that he was still physically capable of. His “physical limitations” from his service-connected conditions may have impacted his ability to perform “high-impact exercises or activities that place strain on the lower body. However, alternative forms of exercise such as… remain viable options that do not exacerbate lower body strain. The ability to engage in these forms of exercise suggests that physical inactivity alone does not fully account for the Veteran’s obesity.” This is, of course, a fallacious straw man argument that also fails to address the impact of his mental health conditions. It did not adequately address the referral question. In addition, the VES contractor appears to be attempting to circumvent or re-litigate a court determination that obesity can be an intermediate step in a Veteran’s disability claim- this is a confrontational, non-policy-compliant approach. While the VES contractor thinks he can write his own policy approach to obesity claims, he cannot.
As I noted previously, the VES contractor’s statement that “research consistently shows that dietary habits have a stronger influence on body weight than physical activity” is not actually supported by the articles he cited. These reflect a much more complex and interactive system than the VES contractor attempted to portray. Meanwhile, the VES contractor’s concluding sentence even contradicts his conclusion. The examiner described this interactive system of “consumption of more calories than are expended” which reflects the interaction of both diet and activity levels.
Regardless of whether we emphasize diet or activity levels as more or less important, however, the examiner failed to even address the extensive scientific evidence that reflects that his mental health conditions at least as likely as not impact both dietary choices and activity levels. This is a glaring failure of the VES contractor’s insufficient opinion. His opinion is not even consistent with the articles he cited.
The VES contractor’s opinion is inconsistent and reflects fallacious reasoning which is contrary to the evidence. It also mischaracterizes the very articles he cited to try to support. It is not the contractor’s right to discount the impact of obesity as an intermediary step based on his biased, confrontational, stigma-based opinion. His opinion should be disregarded as less persuasive and inadequate. It failed to even address the impact of the Veteran’ mental health conditions on his food intake behaviors and activity levels. As the research I cited reflects, food intake behaviors are significantly impacted by apathy, emotional eating and potentially even binge eating tied to coping with mental health conditions, and it is irrelevant if he is physically able to do low impact work if his anxiety and depression has him lying in bed. The VES contractor apparently lacked the relevant expertise to even address this. If he had actually performed a thorough review of the medical evidence, he would have discovered the relevant research in my medical opinion.
The very symptoms of mental health difficulties can lead to weight gain
The examiner failed to adequately address the impact of the Veteran’s mental health difficulties on excessive weight. Mental health difficulties can impact eating behaviors and activity levels. For example, it is notable that major depressive disorder in the DSM-5-TR (pg. 183) lists diagnostic criteria such as “markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day…” and “significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day…” and “psychomotor agitation or retardation,” and “fatigue or loss of energy nearly every day” and others. PTSD (pg. 302) includes criteria like “markedly diminished interest or participation in significant activities). Overeating and inactivity are symptoms of mental health difficulties including PTSD which lead to weight gain and obesity
Various responses to The Laundry List approach from C&P examiners…
The examiner noted that the most common causes of obesity are overeating and physical inactivity. The examiner clearly lacked relevant expertise in PTSD, or they would recognize that PTSD and other mental health difficulties cause overeating and physical activity. Any overeating and physical activity at least as likely as not came from his PTSD. The examiner suggested, instead, that “body weight is the result of genetics, metabolism, environment, behavior, and culture.” This nebulous statement that is not grounded in the Veteran’s medical records is next to useless and also does not contradict PTSD as a cause of his obesity. In terms of genetics- the examiner did not identify any specific gene or gene combination that the Veteran was shown to possess that caused his obesity. In terms of metabolism- the examiner did not demonstrate any metabolic abnormality that the Veteran was shown to possess that caused his obesity. In terms of environment- this is such a vague statement as to be worthless, but again, the examiner did not demonstrate anything about his “environment” which caused the Veteran’s obesity. In terms of “behavior-” this is ironic given that his behavior is heavily impacted by the behavioral disorder of PTSD (something the examiner clearly lacked sufficient expertise in). Psychology is often referred to as the study of human behavior; it is not clear why the examiner felt he could list “behavior” without addressing the associated psychological issues. In terms of culture, the examiner did not identify any specific aspect of his “culture” which caused his obesity. Again, this is a vague and useless statement that is not specific to the Veteran’s own medical evidence. It was noted that sedentary people burn fewer calories. PTSD causes people to be sedentary. The rating decision relied upon inadequate, nebulous and fallacious logic from contract examiners without sufficient expertise in the impact of mental health difficulties. The contract examiners’ opinions were not consistent with what we know about PTSD. They should be disregarded as not sufficient for rating purposes.
Lies, damn lies and throwing the word “statistically” around without using actual statistics
The statement that it is “statistically more likely” that his OSA was due to the laundry list of factors of “advancing age, increasing weight, and male gender” is not supported by research citations or any actual statistics. In fact, it is flawed reasoning which failed to account for the significant contribution of PTSD above and beyond things such as male gender and age (two things which do not in and of themselves cause sleep apnea). In addition, PTSD can lead to “increasing weight.”
Hell no with your intermediate step
The examiner noted obesity is a “major risk factor” for sleep apnea. The examiner noted that his sleep apnea wasn’t due to his PTSD because of this argument related to obesity. The decision went on to rely on the opinion that “any argument” that weight gain “due to these service connected conditions” (it is not clear if the examiner is essentially saying any service connected condition in this copy-and-pasted statement)… “lacks merit.” It is notable that in this clearly copy-and-pasted statement he also noted other conditions such as “diabetes mellitus, hypertension, joint arthritis, etc.” reflecting that the examiner widely applies this view of obesity to all conditions. The examiner clearly and unabashedly said the quiet part out loud noting that this examiner is never willing to consider the impact of obesity as an intermediate step. This is a clear and obvious violation of multiple court mandates and VA policy. The VA relying on this examiner’s opinion is not only a clear and unmistakable error, but a direct violation of the mandate of the court. Not only should this examiner’s opinion not be found to be persuasive, this examiner should immediately cease to receive any more referrals for examinations until additional training is received. The examiner’s non-evidence based opinion is clearly driven by stigma and an approach that is contrary to policy. The examiner appears to be attempting to circumvent or re-litigate court determinations and VA policy that obesity can be an intermediate step in a Veteran’s disability claim- this is a confrontational, non-policy-compliant approach. Examiners cannot write their own policy approaches to obesity claims, and the VA cannot shirk their court-mandated duty simply because they farm their exams out to the lowest bidder.
The examiner noted “any argument” relative to a laundry list of conditions “lacks merit.” The examiner tells us that the Veteran should be blamed for his dietary choices and activity levels. The examiner, who is not a mental health expert, noted that obesity is the result of “voluntary over consumption of calories.” The examiner inappropriately demonstrated using the burden of proof that he would lack “capacity to control his calorie intake and or be responsible for the consequences of failing to do so.” However, this is not VA policy nor is 100% certainty that his mental health condition caused his obesity the Veteran’s burden of proof. While the examiner may not like it and clearly appeared concerned for the tax payor, the Veteran’s burden of proof is at least as likely as not.
The examiner is attempting to singlehandedly re-write VA policy and re-adjudicate legal findings related to obesity as an intermediate step, yet this is not acceptable. The examiner’s bias related to mental health conditions clearly reflects a significant lack of expertise in behavioral health. The examiner failed to even address the extensive scientific evidence that reflects that his mental health conditions at least as likely as not impact both dietary choices and activity levels. This is a glaring failure, particularly when the examiner used an unacceptable bar of physically being precluded from all forms of exercise. If we were to extend the examiner’s non-expert reasoning to other mental health symptoms one would expect that the examiner would view the impact of mental health symptoms as a choice that should not be rated, since, for example, it didn’t preclude all forms of physically interacting with others or all forms of concentrating or all forms of dealing with stress. The examiner has placed an inappropriate burden on the Veteran which is not in keeping with the court’s determination that obesity can be used as an intermediate step. The VA cannot simply sidestep its court mandated duties by relying on non-expert, stigma-driven opinions from examiners who clearly note that they are not willing to consider obesity as an intermediate step. The VES contract opinion should be disregarded as not sufficient for rating purposes and relying on it was a clear and unmistakable error.
As I noted in my prior opinion:
PTSD negatively impacts motivation (ex: reducing activity) and can lead to overeating. His PTSD increases the risk for weight gain and obesity, which in turn further increases the risk for obstructive sleep apnea. The Veteran’s weight gain occurred in the context of PTSD. Subthreshold and threshold post-traumatic stress disorder (PTSD) are associated with binge eating symptoms in both men and women [see Braun J, El-Gabalawy R, Sommer JL, Pietrzak RH, Mitchell K, Mota N. Trauma exposure, DSM-5 posttraumatic stress, and binge eating symptoms: results from a nationally representative sample. The Journal of Clinical Psychiatry. 2019;80(6):19m12813]. Hoerster, et. al. (2015) noted in “PTSD and depression symptoms are associated with binge eating among US Iraq and Afghanistan veterans” [see Eating Behaviors; Volume 17, April 2015, Pages 115-118] that “PTSD and depression are common conditions among Iraq/Afghanistan Veterans. In the present study, PTSD and depression symptoms were associated with meeting binge eating screening criteria, identifying a possible pathway by which psychiatric conditions lead to disproportionate burden of overweight and obesity in this Veteran cohort.” Dorflinger & Masheb (2018), in the research article “PTSD is associated with emotional eating among veterans seeking treatment for overweight/obesity” [see Eating Behaviors, Volume 31, December 2018, Pages 8-11] presented findings that “suggest that emotional eating is common among veterans reporting PTSD symptoms, and that any degree of PTSD symptom severity is associated with more frequent emotional eating.” Mental health difficulties can have a significant impact on activity levels and eating behaviors, influencing weight gain. For example, it is notable that major depressive disorder in the DSM-5-TR (pg. 183) lists diagnostic criteria such as “markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day…” and “significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day…” and “psychomotor agitation or retardation,” and “fatigue or loss of energy nearly every day” and others. PTSD (pg. 302) includes criteria like “markedly diminished interest or participation in significant activities). Overeating and inactivity are symptoms of mental health difficulties which lead to weight gain and obesity. The Veteran’s psychiatric difficulties not only directly impacted the Veteran’s sleep apnea, but also indirectly by increasing the likelihood of weight gain. It is at least as likely as not that his mental health concerns caused his weight gain. Weight gain is not simply a comorbidity; weight gain is a direct, physical, anatomical effect of PTSD.
His mental health difficulties at least as likely as not impacted his eating behaviors and activity levels. As a result, his mental health difficulties at least as likely as not caused the direct effect on his anatomy of weight gain and obesity. Obesity is a significant risk factor and it along with PTSD itself are the most likely explanation for the presence of his sleep apnea. There is no support for the idea that he would have had sleep apnea in the absence of his PTSD and obesity. Sleep apnea does not cause itself. It is at least as likely as not that his PTSD caused his obesity which caused his sleep apnea. His obesity was a substantial factor in the development of his sleep apnea. He likely would not have otherwise developed sleep apnea.
His mental health difficulties at least as likely as not (a 50 percent chance or greater) caused his weight gain and obesity by impacting his food intake behaviors and activity levels. His obesity was at least as likely as not a substantial factor in causing his obstructive sleep apnea. It is at least as likely as not (a 50 percent chance or greater) that the Veteran’s sleep apnea is the result of and would not have occurred but for the mental health difficulties and obesity associated with his mental health difficulties.
Not only should this VA contract examiner’s opinion be disregarded as not sufficient for rating purposes, it should be pointed out to VES that this examiner should no longer receive referrals, at least until appropriate further training is conducted. The examiner’s opinion is both contrary to VA policy and contrary to court-directives. All opinions from this contract examiner involving obesity will likely be clearly and unmistakably erroneous given the clear indication that the examiner is unwilling to consider them sufficiently.
As you are likely aware, per the VA’s own OIG “some of the exams produced by vendors have not met contractual accuracy requirements. As a result, claims processors may have used inaccurate or insufficient medical evidence to decide veterans’ claims.“ The OIG found that the contractors QTC, VES and LHI “failed to consistently provide VBA with the accurate exams required by the contracts.” The OIG notes that “ALL THREE VENDORS HAVE BEEN BELOW THE CONTRACT’S 92% ACCURACY REQUIREMENT SINCE AT LEAST 2017.” Most errors– including a significant number that “had the potential to affect claims decisions–” aren’t corrected before the claims processors decided the claims per the OIG. [See: https://www.va.gov/oig/publications/report-summary.asp?id=5152]
The VA’s own researchers have also identified contract exams as being plagued with errors. The VA researchers noted “there are several possible explanations for the observed deficiencies in contract exams, including lack of supervision, more limited access to VA treatment records, and inadequate training and experience. An additional explanation is that, unlike exams by salaried VA staff, contractors are paid a flat fee for each exam which is a small fraction of the typical fees paid for forensic psychological evaluation in the community. Thus, there is a financial incentive to complete exams quickly, which would preclude careful record review, psychological testing, and detailed report preparation.” The authors go on to suggest that “anecdotally, it is not uncommon for veterans seen by contractors needing to be reexamined, at times with requests for second and even third opinions to resolve “conflicting medical evidence” after a contract examiner rendered an opinion that contradicted those in the veteran’s records or in previous C&P exams. Inefficiencies resulting from poor exams increase the workload for both examiners and VBA personnel and increase the costs for VA C&P operations overall” [see Meisler, A. W., & Gianoli, M. O. (2022). The Department of Veterans Affairs disability examination program for PTSD: Critical analysis and strategies for remediation. Psychology, Public Policy, and Law].
Just ignore the evidence on an IBS claim
The Veteran has had two recent VES contract exams. These VES contract exams have ignored and misrepresented the evidence in an adversarial manner. For example, they both failed to address the favorable opinion from Dr. XYZ. The first examiner did not even acknowledge that the Veteran had been diagnosed with IBS by Dr. XYZ. The second examiner attempted to say there was no psychological involvement in IBS by copying and pasting from a site that contradicts her and noted that there was psychological involvement in IBS (she just chose to not copy and paste that part). The VES contract opinions should not be considered persuasive or sufficient for rating purposes.
The XX/XX/XXXX Intestinal Conditions DBQ from the VES contract examiner noted that the Veteran did not have any diagnosis (including no diagnosis of IBS). This statement was erroneous given that there was a diagnosis of IBS in the records. The examiner also ignored and failed to address the Veteran’s reported symptoms. The examiner focused on the perceived lack of evidence when he was in service despite the Veteran attributing the IBS to his PTSD. The resulting rating decision did not address the favorable evidence from Dr. XYZ. The rating decision made a clear and unmistakable error in noting he was not diagnosed with IBS, as the evidence shows that he clearly was. Simply “acknowledging receipt” of the “private medical opinion” is not a sufficient attempt to address the favorable opinion, particularly when the VES contract examiner also did not address that favorable opinion.
The X/X/XXXX automated decision letter rating decision essentially repeated the same paragraph four times without providing a reasoned response to the favorable evidence. This is because that is all the contract examiner essentially did. The automated response clearly made no reasoned attempt to address the favorable evidence in file. The automated response relied on the X/X/XXXX medical opinion from VES contract nurse practitioner Ms. Fakename. Ms. Fakename copy and pasted from a continuing education document, not peer reviewed scientific literature. However, it is very salient that Ms. Fakename’s copy-and-paste left out a single bullet point reflecting a clear, biased disregard for the actual evidence. She copy and pasted extensively, including every single bullet point except one. As is clearly evidenced she did not include the single bullet point of:
- Psychosocial factors: Psychological factors, eg, stress, can impact intestinal sensitivity, motility, and microbiota, worsening IBS symptoms.
One should wonder why she wholesale copy-and-pasted an entire section with the exception of the favorable evidence for the Veteran’s claim [You can see this gross disregard for yourself here: https://www.ncbi.nlm.nih.gov/books/NBK534810]. She literally copy-and-pasted every single bullet point as if they were gospel yet de-selected the single bullet point that said, “psychological factors” including “stress,” which is literally something that appears in the diagnosis posttraumatic “stress” disorder. This was central to the Veteran’s argument, and Ms. Fakename’s response was to simply ignore it and exclude it from her copy and pasted selection. Her copy-and-pasted “analysis” is not sufficient for rating purposes given that it did not address why she failed to copy-and-paste this bullet point; it also failed to address the actual peer reviewed scientific evidence designed to address the impact of PTSD on the development of IBS. She intentionally ignored the favorable evidence within the quote she used. Ms. Fakename also failed to address the favorable opinion from Dr. XYZ. The VES contract examiner erroneously and intentionally excluded all of the favorable evidence without actually addressing any of it. Relying on her opinion, which was not sufficient for rating purposes, was a clear and unmistakable error.
Cherry picking from bad studies and misrepresenting findings on a GERD claim
It is hard to trust what C&P examiners say about a research study. For example:
I disagree with the decision to deny his service connection for GERD secondary to PTSD; the decision erred in finding the opinion from physician assistant Mr. Noname sufficient and persuasive. Mr. Noname misrepresented the scientific evidence in a biased and adversarial manner, including quoting from a study he clearly did not review. Mr. Noname cherry picked one line from a literature review section from (Gradus, 2017) noting “in a cross-sectional study of patients receiving health care from the US Department of Veterans Affairs, PTSD was not associated with overall GI diagnoses.” He did not cite the study this line came from and clearly did not review it. This is not surprising given that it is behind a paywall. However, the study [Ouimette P, Cronkite R, Henson BR, Prins A, Gima K, Moos RH. Posttraumatic stress disorder and health status among female and male medical patients. J Trauma Stress. 2004 Feb;17(1):1-9. doi: 10.1023/B:JOTS.0000014670.68240.38. PMID: 15027787], should not be found particularly persuasive. There were only 33 participants who met criteria for PTSD in the study and the majority of their traumas were associated with childhood sexual abuse or the sudden death of a loved one. As the authors noted, “the sample size was small with relatively low power to detect significant relationships,” meaning that the study may not have been powerful enough to find statistical significance. In addition, the study did not look at all the impact from PTSD. In the study, they attempted to control for (i.e. statistically remove the impact of) “BMI, smoking status, and alcohol consumption,” all factors that can be at least as likely as not due to PTSD. The authors noted “Given the high overlap between PTSD and other psychopathology, we examined whether associations between PTSD and health outcomes remained when depressive symptoms, GAD, and panic symptoms were controlled” (i.e., they also tried to statistically remove the impact of depression, anxiety and panic from the impact of PTSD). Removing these symptoms is absurd given that we know they often go hand-in-hand with PTSD. This study did not focus on GERD specifically, didn’t focus on all of the factors associated with PTSD, and had such as small sample size that it is essentially worthless.
Mr. Noname went on to note that a study of disaster survivors in the Netherlands “found no association
between self-reported PTSD and de-novo medically documented combined GI disorders.” However, this misrepresents the actual findings of the study. While GERD was not specifically addressed, the authors actually found that “the overall incidence rate of GI disorders was 1.8 times higher in the PTSD cohort than expected based on the rate in the general population.” This is very different than what Mr. Chohan attempted to portrary. In this study, Gradus, et. al (2017) found significant connections between PTSD and gastrointestinal disorders in a large sample of people [see Jaimie L. Gradus, Dóra Körmendiné Farkas, Elisabeth Svensson, Vera Ehrenstein, Timothy L. Lash, and Henrik Toft Sørensend. Posttraumatic Stress Disorder and Gastrointestinal Disorders in the Danish Population. Epidemiology. 2017 May; 28(3): 354–360]. The authors literally write in the conclusions “this study documents associations between clinician-diagnosed PTSD and all major nonmalignant GI disorders in an unselected nationwide cohort with long follow-up.” This contradicts how Mr. Noname attempted to portray the findings. The authors also reviewed another study [see Maguen S, Madden E, Cohen B, Bertenthal D, Seal K. Association of mental health problems with gastrointestinal disorders in Iraq and Afghanistan veterans. Depress Anxiety. 2014 Feb;31(2):160-5. doi: 10.1002/da.22072. Epub 2013 Mar 14. PMID: 23494973] which found that PTSD was associated with irritable bowel syndrome (IBS), gastroesophageal reflux disorder (reflux), and dyspepsia among veterans who served in Iraq and Afghanistan. This also contradicts how Mr. Noname attempted to portray this study. The authors noted that “examining combined GI disorders or symptoms as an outcome may potentially obscure differences in associations between PTSD and individual GI diagnoses” as was done in the previously mentioned Ouimette, 2004 study and which the one-line Mr. Noname used focused on. The authors noted “we found that PTSD was associated with most individual GI disorders with varying strength, which is consistent with research documenting associations between PTSD and GI disorders in the general population and among US veterans.”
Mr. Noname cherry-picked a statement from a relevant meta-analysis [see He M, Wang Q, Yao D, Li J, Bai G. Association Between Psychosocial Disorders and Gastroesophageal Reflux Disease: A Systematic Review and Meta-analysis. J Neurogastroenterol Motil. 2022 Apr 30;28(2):212-221]. Mr. Noname has the authors saying that studies have been “inconsistent.” However, this reflects that Mr. Noname has demonstrated a pattern of misrepresenting the scientific evidence. This meta-analysis included 1,485,268 participants from 9 studies. They concluded that “Studies using GERD as an outcome showed an association between psychosocial disorders and an increased risk of GERD.” The authors concluded that the “results of our meta-analysis showed that psychosocial disorders are associated with GERD; there is an interaction between the two.” This contradicts the examiner’s conclusion.
A large percentage of Veterans with PTSD experience gastrointestinal symptoms. Menon, et. al. (2013) [see Menon, Laila MD; Kelly, Leighann Litcher PhD; Brand, Douglas MD, FACG; Shaw, Robert MD, FACG. PTSD, Depression, and Gastrointestinal Symptoms in Veterans of the Afghanistan and Iraq Conflicts: What’s the Relation? American Journal of Gastroenterology: October 2013 – Volume 108 – Issue – p S571] found that Veterans with a positive PTSD or depression screen tend to also be more likely to have GI symptoms, including GERD. The research literature supports a link between PTSD and GERD. Mizyed, et. al. (2009) concluded that “psychological comorbidity is very common in GERD patients and is likely to play an important role in response, or failure of response, to proton pump inhibitor treatment” [see Mizyed, et. al. (2009)Review article: gastro-oesophageal reflux disease and psychological comorbidity; Aliment Pharmacol Ther; 29(4):351-8].
Mr. Noname also failed to address the impact of obesity and weight gain from PTSD.
…and why not a sleep apnea research study misrepresentation?
Ms. Clueless actually reviewed studies that support the Veteran’s claim. For example, Ms. Clueless mischaracterized the Shah, et. al (2024) twin study [see Shah AJ, Vaccarino V, Goldberg J, Huang M, Ko YA, Ma X, Levantsevych OM, Smith NL, Alagar N, Mousselli I, Johnson DA, Clifford GD, Bremner JD, Bliwise DL. Posttraumatic Stress Disorder and Obstructive Sleep Apnea in Twins. JAMA Netw Open. 2024 Jun 3;7(6):e2416352. doi: 10.1001/jamanetworkopen.2024.16352]. First, she described it as a large study while the authors themselves suggested it was a “modestly small sample size.” She noted that this study suggested that the co-occurrence of PTSD and OSA “is largely explained by shared risk factors rather than a direct etiologic relationship.” However, this statement is wrong. This is not surprising given that nurse practitioners are typically not trained to be effective consumers of scientific research. In fact, even after controlling for these “shared risk factors” (including adjusting for BMI which can itself be impacted by mental health difficulties), PTSD was “independently” associated with sleep apnea. The authors directly contradict Ms. Clueless, noting “PTSD diagnosis and symptoms were associated independently with OSA, even after controlling for demographics, behavioral factors, cardiovascular risk factors, and familial factors.” This directly contradicts the inaccurate and misleading statement by Ms. Clueless (who lacks expertise in evaluating research on PTSD and sleep apnea). The study she cited even noted that— even after adjusting for what Ms. Clueless described as “shared risk factors,” each 15-point increase in the PTSD checklist score (PCL) “was associated with a 4.6 (95% CI, 0.1-9.1) events-per-hour higher AHI. Current PTSD diagnosis was associated with an adjusted 10.5 (95% CI, 5.7-15.3) events-per-hour higher AHI per sleep-hour. Comparable standardized estimates of the association of PTSD symptoms and BMI with AHI per SD increase (1.9 events per hour; 95% CI, 0.5-3.3 events per hour) were found.” The examiners concluded that they “found a strong dose-response association between PTSD and OSA. The twin design allowed close control of familial influences, and the sampling strategy using the Vietnam Era Twins Registry minimized bias. The results suggest that functional neurobiologic and stress pathways modulating respiratory regulation and airway collapse are important in the etiology of OSA.” This directly contradicts what Ms. Clueless wrote about this study, suggesting she may not have even read it. The authors’ conclusions are also inconsistent with the examiner’s mischaracterization of the study results. They note “our findings emphasize the need for more studies to examine mechanisms underlying endotypes of OSA that incorporate psychological stress pathways. Possible mechanisms include pharyngeal collapsibility and exaggerated loop gain, which describe the centrally mediated respiratory response to the mild carbon dioxide retention at the onset of sleep.40 Posttraumatic stress disorder may cause a lower sleep arousal threshold and decreased autonomic and respiratory reflexes.40 Nighttime PTSD symptoms, such as nightmares, may increase sleep fragmentation, which in turn may increase airway collapsibility.6 We speculate that specific brain pathways that may be altered in PTSD may also be involved.41 This speculation is supported by studies of OSA using functional brain imaging that have shown alterations in regions of the brain involved in stress regulation, such as the thalamus and anterior cingulate cortex.42 Neurologic substrates between the brain and the visceral organs that regulate respiration and pharyngeal patency may also be involved.” The authors noted that increased PTSD symptoms “were associated with statistically and clinically higher AHI. This analysis is, to our knowledge, the most rigorously controlled to date for examining the association between a psychiatric anxiety disorder such as PTSD and OSA.” This was a strong effect, as the authors noted “with our discordant twin models, we also found that the standardized effect size for PTSD symptoms was remarkably similar to BMI, which is one of the most established risk factors for OSA.” Again, it is not clear what study Ms. Clueless read, as she has clearly mischaracterized the findings of Shah, et. al. (2024). In her literature review section Ms. Clueless noted in relation to the BMI that “excess weight is the strongest risk factor associated with obstructive sleep apnea” yet she failed to consider this statement related to the BMI from the very research article she cited. The very research article she cited indicated that the severity of PTSD symptoms, as measured by the PTSD checklist, were “remarkably similar to BMI.” Ms. Clueless, who does not have the expertise to even evaluate PTSD severity, failed to consider the severity of his PTSD as an independent risk factor. This is particularly relevant given that he had a severe PTSD yet his BMI was not even in the obese range. The supporting study she cited, of course, focused on obesity and not a BMI of 28 which is not in the obese range [see Romero-Corral A, Caples SM, Lopez-Jimenez F, Somers VK. Interactions between obesity and obstructive sleep apnea: implications for treatment. Chest. 2010 Mar;137(3):711-9. doi: 10.1378/chest.09-0360. PMID: 20202954; PMCID: PMC3021364]. Her assertions related to BMI are speculative in the context of a BMI of 28, and, as noted, she ignored the very research she cited which reflected that the severity of PTSD symptoms were “remarkably similar to BMI” which contradicts her point related to the impact of PTSD.
A study from down under…
The examiner copy and pasted a single study with a small sample size from Australia and misconstrued the findings. In fact, given the small sample size of 40 Australian Veterans with a full PTSD diagnosis, it could be more difficult to find statistically significant differences. In fact, the study was not even comparing individuals with no trauma to those with PTSD, they were individuals who had trauma exposure (from Vietnam) that didn’t meet full criteria for PTSD as compared to those who did. This is not an unimportant distinction since subthreshold PTSD and trauma exposure can lead to many of the same processes as a full diagnosis of PTSD. In addition, they statistically manipulated the data to try to “control for” other factors such as BMI, even though we know that BMI could have been the result of PTSD (since PTSD leads to weight gain). The study participants were able to self-select whether they attended a sleep study and in fact “92 declined,” a number significantly higher than either group that ended up being in the study (as noted there were only 40 people with PTSD in the study; the examiner has likely been in longer lines at Starbucks). It stands to reason there are likely significant differences between individuals willing to accept a free sleep study and those who do not choose to participate in a free sleep study. Those that declined the free sleep study likely did not perceive themselves to have significant concerns with sleep apnea while those that accepted the free sleep study may have had more sleep apnea concerns. Simply copying and pasting this single, flawed study without doing a broader analysis of the extensive research in this area reflects an inadequate rationale and a lack of expertise on the part of the family nurse practitioner.
More games
The examiner quoted a study as if it concluded something unfavorable to the Veteran, when in reality the study’s actual conclusions were favorable to the Veteran. Ironically, the examiner cited Lynegar, R., et. al, (2018) to note that in relation to studies “none, however, have shown a relationship between PTSD and OSA independent of cardiac risk factors.” However, the use of this statement by the examiner is flawed given that it does not reflect the actual results of the study. The literal conclusion of Lynegar, R, et. al. (2018) is essentially the opposite of that statement. The authors note that even after attempting to control for lots of other comorbid factors “PTSD is significantly associated with OSA independently of CVD risk factors. It is important that those with PTSD and high levels of stress be assessed for possible OSA” with CVD risk factors being cardiovascular disease. Hilariously, the examiner copy and pasted an abstract of a study without actually reading the conclusion that contradicted what was put in the abstract. The reality is that the statement in the abstract the examiner relied on, “none, however, have shown a relationship between PTSD and OSA independent of cardiac risk factors” was written in relation to past studies in a manner to make the author’s study seem more important and groundbreaking than it in actuality was. Regardless, it is clear that the examiner’s opinion was found persuasive in error as the examiner cherry-picked a statement that does not reflect the actual result of the study. The examiner copy and pasted a section of the abstract of a study which found something different than what the examiner actually copy-and-pasted; this makes the examiner’s expertise and opinions highly suspect and not reflective of a thorough review. An expert should be familiar with the actual study, not just the abstract that they Googled [https://www.ahajournals.org/doi/abs/10.1161/circ.136.suppl_1.19113].
A still unpublished study years later? Sounds like something a C&P examiner will rely on.
The examiner focused on Holty, et. al. (2020) [see J C Holty, A Pandey, J Q Ho, 1069 Posttraumatic Stress Disorder is Associated With Poorer Sleep Specific Quality of Life, but Not With Sleep Apnea, Sleep, Volume 43, Issue Supplement_1, April 2020, Page A407, https://doi.org/10.1093/sleep/zsaa056.1065]. This is a brief abstract of a presentation at a conference, not a peer reviewed journal article. The data has not been peer reviewed to date. It used the AHI exclusively as a measure for sleep apnea, a measure which has been widely criticized as a means of evaluating sleep apnea. The study’s authors did not even address whether a home sleep apnea test was used to obtain the AHI (something which can underestimate AHI). This is relevant as the study’s authors did not look at mild sleep apnea, they only looked at moderate to severe sleep apnea. This is relevant given that the PTSD group in the study tended to be “younger” than the comparison group. Interestingly, “age” was noted to be a predictor for sleep apnea and of course the comparison group was older. The study failed to address PTSD and mild sleep apnea. They did not provide any discussion of reasons why their findings might be different from numerous other studies.
Amusingly, current PTSD was not statistically significant in this article, but the p value was noted to be p=0.06. This reflects that it was close to statistical significance of p=0.05. The bar that is often used in research studies is 95% confidence (and PTSD was only 1 point away from that in this study despite the concerns that the PTSD group was younger than the comparison group, the failings of the AHI, and that mild sleep apnea was not included in the analysis for some unexplained reason). The Veteran’s burden of proof is not 95% confidence or 100% certainty of causation, it is at least as likely as not. In this study cited by the examiner, the relationship with PTSD (p=0.06) was much higher than 50/50. The examiner noted in all-caps that being at a higher risk “DOES NOT EQUATE TO ETIOLOGY OR CAUSATION…” yet this level of certainty of causation is not the Veteran’s burden of proof. The examiner suggested that the article noted “PTSD is not associated with” OSA, yet this misrepresents the findings of this study. The authors noted that “the degree that posttraumatic stress disorder (PTSD) contributes to obstructive sleep apnea (OSA) or sleep specific quality of life (QOL) remains uncertain.” The examiner failed to sufficiently consider the extensive evidence that supports a relationship between PTSD and sleep apnea and failed to provide a rationale that was actually focused on at least as likely as not rather than 95% to 100% certainty of causation.
Smoking and sleep apnea?
It is amusing how often a C&P examiner will include smoking history as a risk factor for sleep apnea when the Veteran’s actual medical evidence indicates that they are a never smoker. This is typically because some examiners just recycle the same copy-and-pasted opinion over and over with potentially no edits related to the actual medical evidence.
The examiner also noted a concern related to his smoking history, yet the scientific evidence supports that his smoking history was at least as likely as not due to his mental health difficulties. Individuals with mental health issues are far more likely to be smokers. Even the VA has a fact sheet on their website related to this [ex: see https://www.mentalhealth.va.gov/quit-tobacco/docs/PTSDandTobaccoUse_508.pdf].
The examiner blamed “smoking” for his sleep apnea, yet there is little supporting scientific evidence presented for this opinion. In addition, the examiner failed to consider the impact of his PTSD on the development and maintenance of his smoking behavior. Researchers reviewed 45 studies that presented primary data on PTSD and smoking. They found that “smoking rates were high among clinical samples with PTSD (40%-86%) as well as nonclinical populations with PTSD (34%-61%). Most studies showed a positive relationship between PTSD and smoking and nicotine dependence, with odds ratios ranging between 2.04 and 4.52. Findings also suggest that PTSD, rather than trauma exposure itself, is more influential for increasing risk of smoking. A small but growing literature has examined psychological factors related to smoking initiation and maintenance and the overlapping neurobiology of PTSD and nicotine dependence. Observational studies indicate that smokers with PTSD have lower quit rates than do smokers without PTSD.” The researchers concluded that “the evidence points to a causal relationship between PTSD and smoking that may be bidirectional. Specific PTSD symptoms may contribute to smoking and disrupt cessation attempts” [see Fu SS, McFall M, Saxon AJ, Beckham JC, Carmody TP, Baker DG, Joseph AM. Post-traumatic stress disorder and smoking: a systematic review. Nicotine Tob Res. 2007 Nov;9(11):1071-84]. It is at least as likely as not that his smoking behavior is due to his PTSD, as smoking is often used as a coping mechanism.
PTSD and validity scales on personality testing
There was a X/XX/XXXX mental disorders DBQ (not a PTSD DBQ) from [C&P examiner name removed] (which reflects a likely error including in the questions posed to the examiner). She indicated his MMPI-2-RF profile was “invalid” due to “over-reporting of symptomatology.” She did not demonstrate conducting any assessments for PTSD, as the MMPI-2-RF is technically not designed to address PTSD. She did not consider alternative explanations for why the scores might be elevated such as a cry for help in the context of a disability claim (something that is quite common on this measure). She failed to address the extensive scientific evidence demonstrating that the validity scales on the MMPI-2-RF were not designed for PTSD and are often elevated in individuals with PTSD.
Flashbacks, dissociation, and many of the other symptoms of PTSD are often misinterpreted by validity scales as someone trying to fake psychosis or other mental health symptoms. These “personality tests” were typically not designed with a focus on PTSD, and the symptom validity measures are not foolproof (one reason this could be is that many of these scales were developed by simply asking college undergraduates to fake like they have a certain disorder such as schizophrenia). One major issue is that PTSD symptoms were not a focus of the test developers. In fact, if you were to review the items on the Dissociative Subtype of PTSD Scale (DSPS) developed by the VA’s National Center for PTSD, you’d see items that the VA thinks are related to PTSD which sound a lot like the question items used on scales like the MMPI-2-RF to screen for “invalid” responses.
Eadie & Briere (2025), two prominent experts in the field of trauma assessment, note that no version of the MMPI has any scales designed to measure dissociation- a prominent group of symptoms related to PTSD that can create misleading elevations on validity scales. They note that individuals with dissociation tend to score high on scales like the Schizophrenia scale and validity scales (ex: the F scale). The authors note “part of the problem is that dissociation was not a focus of MMPI item writers; thus, the construct is not sufficiently addressed within the item set, making it difficult to generate a robust dissociation scale…” The authors reviewed studies noting “trauma survivors tend to have elevated scores on standard MMPI and MMPI-2-RF validity scales relative to other clinical groups.” The authors note “as a result, some trauma survivors and PTSD sufferers may be seen as intentionally over reporting their symptoms when, in fact, they are accurately reporting trauma related experiences, comorbidities, and unusually high psychological distress.” The authors note that “in a similar vein, those with trauma related dissociation are more likely to endorse items on validity scales that overlap with true dissociative symptoms.” Even the MMPI-3 “does not include a PTSD scale.” The authors note that one of the “most common” presentations for PTSD on the MMPI-2 was an elevation in the validity scale F, which is typically interpreted as symptoms that are infrequently endorsed by people with genuine pathology. However, this is not the case for individuals with PTSD. Unfortunately, examiners without sufficient expertise will misinterpret these validity scales in individuals with PTSD. Interestingly, these two experts in the field note in their text published by the American Psychological Association, “of the three most recent versions of the MMPI, the MMPI-2-RF Validity (and Clinical) scales may be the least preferred choices relative to the MMPI-3 and the MMPI-2 [see Psychological Assessment of Adult Posttraumatic States: phenomenology, diagnosis, and measurement; 3rd edition, Erin Eadie and John Briere; American Psychological Association, Washington, DC; 2025; pgs 109-114] The examiner’s heavy-handed use of one single measure and relying on it alone to discount his presentation in her rationale is not in keeping with the standards in the field. This dubious overreach is also one cautionary tale of why organizations like the Social Security Administration now forbid their use in disability claims. It is also notable and concerning that a replacement, newer version for the MMPI-2-RF, the MMPI-3, was published almost 4 years prior to this assessment. It is not clear why this examiner chose to continue to give this outdated measure and also interpret it in a manner inconsistent with the standards in the field; this calls into question how current her knowledge is in forensic assessment. It is also particularly concerning given that Eadie & Briere (2025), as noted above, called the version the examiner used the “least preferred” choice relative to the validity scales and PTSD, reflecting that this examiner used an outdated test known to overrepresent validity concerns in individuals with PTSD.