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  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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To file for smc,you have to be 100% and have another 60% disability rating.I now have sleep apena and probably will be on a crap machine,also been on couple hp medicines for a few years from the va to lower my hp,should I file and try for smc

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I have other disabilities that total 100% now with this SA and taking couple pills for HBP, thats not SC,I'm thinking,should I file for both?  

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you hit it on the head- 1) BVA decisions should be your 1st in-depth review and 2) they provides a ton of info, but claims are individual.  Use them as intel on how you will develop your claim or appeal.

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Andyman that gave me a good laugh!

I would pull General Petreaus back into the gov in a heartbeat.

He could be a top military advisor and/or the Secretary of the VA.

I forgot to mention that BVA decisions also contain US CAVC cases they refer to,which often hold key precedent setting statements that can help a claimant in a similar situation.

I only have had 2 BVA decisions, one long ago, that denied the claim (or rendered it moot I think it said) as I had been awarded at the RO level the same award,but under a different basis,and had never withdrawn the appeal. But that older decision contained a big clue,that inspired me to file another claim years after that and succeed.

This is funny now but I was pissed when this happened....the BVA awarded the second claim and as evidence for the RO award decision, I had attached their statement regarded my FTCA offset...from the older BVA case,by highlighting that part of a copy of the older BVA case and sending it to the RO.

The RO completely ignored that statement ( which warranted full FTCA offset refund, if a direct SC claim ever succeeded) until I called up the General Counsel in DC and then the VA paid the refund.

The RO cannot supersede any BVA statement of legal fact. But they sure will try to.

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Here is my posted BVA results.

Citation Nr: 1547296
Decision Date: 11/09/15    Archive Date: 11/13/15

DOCKET NO.  13-32 679 ) DATE

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


Entitlement to service connection for obstructive sleep apnea.


Veteran represented by: Hawaii Office of Veterans Services


The Veteran


V. Chiappetta, Counsel


The Veteran served on active duty from July 1980 to July 2005. 

This matter is before the Board of Veterans' Appeals (the Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. 

The Veteran testified before the undersigned at a hearing held in September 2015.  A transcript of the hearing has been associated with the Veteran's claims file.


The Veteran's obstructive sleep apnea is shown to have had its onset during his period of active service.


Obstructive sleep apnea is due to disease or injury that was incurred in active service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).


Duties to Notify and Assist

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  To the extent that there may be any deficiency of notice or assistance with respect to the Veteran's sleep apnea claim, there is no prejudice to the Veteran in proceeding with adjudication given the favorable nature of the Board's decision.


Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015).

The Veteran in this case asserts that although obstructive sleep apnea was first diagnosed in November 2011, approximately six years after completing his period of active service, his sleep apnea actually began during service but was never tested or formally diagnosed.

It is undisputed that the Veteran was diagnosed with severe obstructive sleep apnea following a sleep study administered in November 2011.  See the Veteran's November 20, 2011 Polysomnographic Report.  Although he was not diagnosed with sleep apnea during service, his service treatment records include complaints for "wheezing during his sleep" and dyspnea dating as far back as 2000.  See a November 2, 2000 in-service consultation report.  He also received treatment during service for hypertension, headaches and general feelings of weakness.

At the September 2015 hearing, the Veteran competently testified that he began feeling increasing dyspnea, shortness of breath and daily fatigue and tiredness in and around the year 2000, as is consistent with the Veteran's contemporaneous service treatment records, highlighted above.  He noted ongoing symptoms of high blood pressure during service, as well as headaches, both of which he documented on his Report of Medical History upon separation on May 12, 2005.  Also on that report, the Veteran noted a history of breathing problems and high blood pressure. 

In a February 2012 statement, the Veteran's wife indicated that she has been married to the Veteran for over 20 years, and has noted the Veteran's sleeping habits have been steadily getting worse, and that his virtually impossible to sleep with because of the noise and distractions.  She noted that the Veteran' stops breathing and makes gasping and choking sounds in his sleep.  She specifically stated that the symptoms began in the early 1990s, and highlighted the Veteran's in-service treatment for fatigue and breathing issues. 

In support of his claim, the Veteran has recently submitted a medical opinion from Dr. J.S.S. dated July 27, 2015.  After reviewing the Veteran's history as outlined above, and upon examination of the Veteran, Dr. J.S.S. pertinently determined that although the Veteran's sleep apnea was not documented until 2011, he had "symptoms (headache, hypertension) suggesting possible sleep apnea preceding his diagnosis for at least 10 years."  Dr. J.S.S. noted that the Veteran has a long history of snoring and hypertension that was difficult to control noted in his previous medical records.  He concluded that these symptoms and conditions may have resulted or been worsened by "unrecognized, undiagnosed, and untreated sleep apnea." 

The Board observes that a May 2012 VA examiner opined against a relationship between the Veteran's sleep apnea and his period of service, but simply noted by way of rationale that there was not enough objective evidence to make the connection.  The Board finds the negative and generally unexplained medical opinion of the May 2012 VA examiner much less probative than the more specific favorable opinion of Dr. J.S.S., who discussed the Veteran's medical history, recognized the fact that the symptoms exhibited by the Veteran during and after service constitute well-documented complications of untreated sleep apnea, and came to a logical conclusion supported by the other competent lay and medical evidence of record.

Thus, in light of the fact that (1) the Veteran's service records note complaints of and treatment for symptoms such as dyspnea, wheezing in his sleep, hypertension, headaches and fatigue, which are shown to be complications of untreated sleep apnea; (2) the Veteran and his wife have offered competent and credible testimony pertaining to the dates of onset for sleeping problems (during service), and the treatments the Veteran has received for ongoing symptoms suggestive of sleep apnea during and since service; and (3) the favorable and probative medical opinion of Dr. J.S.S. described above, the Board resolves all doubt in the Veteran's favor and concludes that the evidence favors a finding of in-service incurrence of obstructive sleep apnea.  The benefit sought on appeal is granted.


Service connection for obstructive sleep apnea is granted.

Veterans Law Judge, Board of Veterans' Appeals


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On 1/19/2016 at 11:36 AM, Andyman73 said:

Sleep apnea is most likely going to be the next big VA scandal, as far as denying benefits goes. 

The problem (to me) is that the VA does not like to diagnose anything new at the PCP level. Instead, they concentrate on data keeping, renewing existing prescriptions, routine appointments, and lab tests.  With the current chaos involving the "Choice" programs in my area, I'd need to see an outside specialist (my and Medicare's dollar) to get a good diagnosis, use Medicare to obtain a CPAP, than hit the VA for the supplies. As I understand it, the CPAP can be "rented" on a Medicare paid basis, and this could be used to get the VA to move a bit faster. There also is a "BPAP" machine. (More expensive, works better for some)



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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
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • 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. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 


      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.


      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
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