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TiredCoastie

Osa And Asthma - Revisiting The Question

Question

I'm rated at 50% for OSA with CPAP but was declined "reactive airway disease" or asthma in my initial claim. I'm thinking about submitting a claim for asthma now that I'm on ADVAIR daily. Does anyone have any experience in winning this?

However, been reading on HadIt which highlighted 38 CFR 4.96(a)

§4.96 Special provisions regarding evaluation of respiratory conditions.

(a) Rating coexisting respiratory conditions. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. However, in cases protected by the provisions of Pub. L. 90-493, the graduated ratings of 50 and 30 percent for inactive tuberculosis will not be elevated.

One post from 2010 pointed to BVA citation number 0610557 which indicated one interpretation of the above regulation as being that not permitting DC 6600-6817 from being combined and 6822-6847 from being combined but that a disability from each group could be rated separately. But I just found BVA citation 1448605 in which a veteran used this exact argument to attempt to separate his OSA and asthma, and the BVA found the opposite - that 6600-6817 and 6822-6847 could not be combined. So they've ruled both ways. I'm not the best at looking at CAVC cases, but I didn't see anything that addressed the interpretation in their rulings, although I easily could have missed something.

Asthma is 6602 and OSA is 6847.

Based on the more recent BVA decision from last year, it seems like it's not worth it from a rating increase standpoint. If I'm successful, the RO will combine the ratings and keep me at 50% for both as a single rating. My OSA is more severe than my asthma. If my asthma was worse, maybe I could argue for a combined rating of 60%?

Is my understanding on this right?

Edited by TiredCoastie

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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

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