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20% Disability Raised To 60% On Ab8 Before Receiving Disability Decision


Absolute

Question

I filed for an increase in my allerghic rhinitis (0% SC), re-opened claim for sleep apnea w/CPAP in April 2012. Both were claimed on my initial claim in 2007 (received 10% for an tear in a disc in my back and 10% for a badly strained rt shoulder). Sleep apnea was denied 2 times previously. The claim process got all the way to decision notification phase and was sent back to review of evidence but the letter was updated. It seems like I won my claim but I am wondering as well, how far back would the retro pay go since the effective date of my AB8 states May 1, 2012 which is the month after my claim was filed. Would I get paid from the date of my medical evidence (2007) or the effective date and is that why it possibly was sent back for additional review? Any help would be greatly appreciated. Thank you in advance.

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Did you appeal the 2007 denials? Or, did you re-open your sleep apnea claim with new and material evidence?

If you did not appeal then your effective date would be when you re-opened the claim. The only way this will not be the case is if your original denial was because they could not find your SMR's and denied you because there was no inservice occurance of your sleep apnea. Then if they later found your SMR's you could go back to 2007.

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I was given 0% SC in 2007 for allergic rhinitis and requested an increase on this current claim. Also, I was denied SC for OSA w/CPAP in 2007, 2009. I re-opened it with new material evidence in 2012. So I am just wondering if its possible that one of those will be retro to my initial 2007 claim. It looks like I was approved for one or both since my AB8 now states 60%.

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I'm guessing here but it looks like you got 50% OSA and 0% rhinitis. With your previous two 10% conditions that would make 60% in va math. The OSA will go back to when you submitted new evidence. Good work. You should be proud that you were able to get them to connect the OSA. Was it secondary to rhinitis?

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50% OSA

10% back

10% Shoulder

starting at 100%

100% X .5 for OSA = 50% rating and leaves 50% still ok

50% X .1 for back = 5% rating and leaves 45% still ok

45% X .1 for shoulder = 4.5% rating and leaves 41.5% still ok

total rating 59.5 rounded to 60% leaves 41.5% still ok

You may have recieved a rating for rhinitis but it can't be more than 10% and still be combined rating of 60%.

If you got 20% for rhinitis then you would be 70% total.

your remaning 41.5% X .2 = 8.3 + 59.5 = 67.8 rounded to 70%

There is a calculator here on hadit that worke really well. It would help further explain VA Math:)

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I provided allergy tests, shots, more statements from co-workers as well as evidence that I use the CPAP every night and receipt of new equipment this year.

They also got the data off of the chip from my CPAP.

Edited by Absolute (see edit history)
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50% OSA

10% back

10% Shoulder

starting at 100%

100% X .5 for OSA = 50% rating and leaves 50% still ok

50% X .1 for back = 5% rating and leaves 45% still ok

45% X .1 for shoulder = 4.5% rating and leaves 41.5% still ok

total rating 59.5 rounded to 60% leaves 41.5% still ok

You may have recieved a rating for rhinitis but it can't be more than 10% and still be combined rating of 60%.

If you got 20% for rhinitis then you would be 70% total.

your remaning 41.5% X .2 = 8.3 + 59.5 = 67.8 rounded to 70%

There is a calculator here on hadit that worke really well. It would help further explain VA Math:)

Thanks for the breakdown. I think I have used that calculator before but it was a while ago.

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It was not presumptive...since it was not diagnosed in service. I was diagnosed less than a year after separating from service. The rhinitis has been in my records for many years...so I am assuming (I know what that does - lol) that they connected the two and approved me for OSA w/CPAP.

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I am changing my earlier guess from

The OSA will go back to the date of new and material

to

you may be able to go back to the original filing.

I was diagnosed less than a year after separating from service

That DOES make it presumptive and they missed it the first two times. If you were diagnosed more than a year after service then it is NOT presumptive. Look up the CFR as it relates to diseases diagnosed within a year of discharge.

Did you have CPAP less than 1 year after discharge?

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Nice! Thank you for that additional information. The doctors at the VA tried anxiety pills, mouth pieces and then decided the CPAP would be the best option for me. This was all done between 2008-2009. The sleep apnea was diagnosed in 08 and CPAP given in 09 after a second study was done, if I recall correctly.

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now that I read your previous post, I may have been mistaken about the presumptive. I see where they list all of the presumptives and sleep apnea is not on it.

Your newly submitted buddy statements may have supplied the nexus of your current condition and service. If that is the case then I go back to my original guess that the effective date will be when you submitted the new evidence.

You will have to wait and see. Just like the rest of us.

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I got my Brown Envelope today and was excited to see that they gave me 50% for sleep apnea w/CPAP but was disappointed that they only paid retro back to the date of my claim. I am going to file the NOD because if it was service connected it should go back to my first filed claim, right? Am I screwed because this was a re-open of the claim with new evidence? Any help would be appreciated again.

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I am going to file the NOD .... To be honest, I don't think that this NOD would be successful. However, it is your right to appeal if you want to.

... if it was service connected it should go back to my first filed claim, right? Not necessarily.

Am I screwed because this was a re-open of the claim with new evidence? I don't know that I'd say you were screwed at all.

You filed a claim in 2009 that was denied on two bases: Direct and Presumptive; that claim became finalized because you did not continuously 'prosecute' your claim.

In 2012, you filed to reopen your claim with New and Material Evidence.

Based on that evidence, service connection was granted.

In this case, the effective date would be per the opening paragraph of 38 CFR 3.400 http://www.benefits....ART3/S3_400.DOC

I got my Brown Envelope today and was excited to see that they gave me 50% for sleep apnea w/CPAP but was disappointed that they only paid retro back to the date of my claim. I am going to file the NOD because if it was service connected it should go back to my first filed claim, right? Am I screwed because this was a re-open of the claim with new evidence? Any help would be appreciated again.

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