Reduction: Sleep Apnea

[SGT K]

Hello fellow Veterans!

I have a question that I need your help with. I was rated 0% in 2002 when I was medically retired under chapter 61 for sleep apnea and 40% for LBP and 30% Asthma. A year later I filed for an increase cause my symptoms came back after my uvulopalatopharyngoplasty surgery on AD, I was award 50% for sleep apnea( on CPAP). Last year I field a calim for my knee, then they told me that they had made an mistake and I could'nt get Asthma and sleep apnea rating!

So I found the below information and I wonder if it fits the bill for what I'm going thru? Does the10 year rule apply here? I asked for a hearing, but they been putting me off for over a year now.

A. Section 1159 of title 38, United States Code, and its implementing regulation, 38 C.F.R. § 3.957, protect a grant of service connection (unless the grant was based on fraud or military records clearly show that the person concerned did not have the requisite service or character of discharge) that has been in effect for ten years or longer, as computed from the effective date of the establishment of service connection. Those provisions protect even service connection errone­ously and recently granted, but with an effective date more than ten years before the date of the decision establishing service connection. The Department of Veterans Affairs (VA) may not sever such a grant of service connection (in the absence of fraud or lack of requisite service or character of discharge).

[Chuck75]

Hello fellow Veterans!

I have a question that I need your help with. I was rated 0% in 2002 when I was medically retired under chapter 61 for sleep apnea and 40% for LBP and 30% Asthma. A year later I filed for an increase cause my symptoms came back after my uvulopalatopharyngoplasty surgery on AD, I was award 50% for sleep apnea( on CPAP). Last year I field a calim for my knee, then they told me that they had made an mistake and I could'nt get Asthma and sleep apnea rating!

So I found the below information and I wonder if it fits the bill for what I'm going thru? Does the10 year rule apply here? I asked for a hearing, but they been putting me off for over a year now.

A. Section 1159 of title 38, United States Code, and its implementing regulation, 38 C.F.R. § 3.957, protect a grant of service connection (unless the grant was based on fraud or military records clearly show that the person concerned did not have the requisite service or character of discharge) that has been in effect for ten years or longer, as computed from the effective date of the establishment of service connection. Those provisions protect even service connection errone­ously and recently granted, but with an effective date more than ten years before the date of the decision establishing service connection. The Department of Veterans Affairs (VA) may not sever such a grant of service connection (in the absence of fraud or lack of requisite service or character of discharge).

In the section quoted, it does not address reduction, only that the SC cannot be severed. However, a proposal to reduce must meet requirements that the VA likes to ignore.

The usual thing is that the VA makes the proposal, the veteran does not disagree, and the proposal becomes action. The recent changes have made things a bit more difficult, in that you must file an NOD in the prescribed manner with the proper forms, or electronically.

[SGT K]

So what do I do next, I asked for a hearing. What forms should I file now?

[Philip Rogers]

Have you actually received a "Proposal to Reduce???" It states the actual date the reduction will start and the appeal rights. Until you receive the actual "proposal" you can do some research. Check the ratings codes used for Asthma and for Sleep Apnea and look them up in 38 CFR. Personally, I don't see how one can offset the other, but that's just me.

pr

[SGT K]

I actually recieved the letter, but I rejected the reduction and asked for a hearing which has been put off for almost a year.

[Philip Rogers]

SGT K - Have you compared the codes you are rated for and their descriptions? Since you're awaiting a hearing, have they temporarily deferred the actual reduction, in the meantime??

As to you're original question, as Chuck75 stated, service-connection(SC) is protected but not the rating.

pr

[SGT K]

Thanks PR, so I guess I'll lose that 50% for sleep apnea and just Keep the 60% for Asthma, and Yes; They didnt rudce my monthly compensation. Under the codes I cant be rated for two of the same 6600 codes.

[red]

How long have you been rated for sleep apnea. The way I understand it after ten years they will not take the rating away usually, bur can up to twenty years. Is this what the board understands? I am 75, was rated for sleep apnea in 2001. Could not make it without the compensation. Good luck Sgt.

[Chuck75]

Thanks PR, so I guess I'll lose that 50% for sleep apnea and just Keep the 60% for Asthma, and Yes; They didn't reduce my monthly compensation. Under the codes I cant be rated for two of the same 6600 codes.

There may be alternate codes available. You might have to do some research to find them. Another possibility is the "secondary to" path, getting the problem away from the "6600"

code sequence entirely. Think "Out of the Box"!

[lotzaspotz]

This may be a situation where you need an attorney to help protect yourself, JMO.