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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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Heart Attack caused by Sleep Apnea MI by OSA


Go to solution Solved by broncovet,

Question

Hello all,

I separated in 2007 and was awarded 80% for a number of things (listed below) after awards I have never made another claim.  Since I got out I've used the VA for some care for my eyes and CPAP gear but not for everything as I have private insurance.  Last month on Dec 21st I had a heart attack at 37 years old (turned 37 2 weeks before on Dec 11th) with 1 each 100% blockage requiring a stent.  I was not on cholesterol or BP meds and I receive no disability for any cardio related issue.  I had an electrocardiogram and my heart looks great with 100% function and my non VA cardiologist said I have to take plavix for a year and likely statins and BP meds for life but other than that no restrictions and no other damage.  I read that OSA causes issues including heart attack but I have had high normal cholesterol  since I was active duty (ldl 150ish, tri - 100+, hdl 40s, total 210+) and  normal BP always.

 

My questions are:

1 - Can I tie the MI event to OSA?  And if so can it cause the MI even if my BP and Cholesterol are not really considered high?

2 - If I have 100% function and no damage is it worth the effort?

 

disabilities 

Disability

Rating

left knee strain

0%

left ankle strain status post talar break

10%

right ankle strain

10%

multi-level degenerative disc disease, thoracolumbar spine (claimed as lumbar and thoracic back conditions)

10%

bilateral keratoconus

30%

tinea versicolor

10%

allergic rhinitis (also claimed as sinusitis), status post septo-rhinoplasty

10%

tinnitus

                                                                     10%

 

central sleep apnea

50%

 

 

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Yes..there is a risk.  The VA has implemented a plan to reduce all Vets who apply for an increase in order to stop Veterans from seeking an increase, thus reducing their workload and backlog, as well as saving money to fund the "next pork barrel" hospital.  Just kidding, tho suprisingly we see this myth propogated by VSO's, VA employees, and even some Vets advocates.  

However, knowledge is power, and you are gonna get that right now!  

The VA has "specific criteria" when they can reduce you, and, if you have been rated over 5 years or are P and T, then they can not reduce you UNLESS you not only Actually improved, but did so while working.  

The VA can not reduce you for applying for an increase, this is NOT a criteria for reduction!  Of course, if you did "actually improve under ordinary condtions of life", then you probably wont be applying for an increase, now would you?  Gee, you get better so to get even with VA you apply for more benefits?  How often is that gonna happen.  

It IS true that VA looks at your whole file when you seek an increase, however, the VA does that anyway, always on the lookout to save money by cutting benefits, especially by Vets who have improved and no longer need benefits, such as they are able to go against all odds, cure incurable diseases and go back to work full time!  

Incredibly, some rather famous Vets did just that, but were still not reduced!   John Mc Cain, Max Cleland are both senators collecting 100 percent and working as a US Senator.  Tammy Duckworth, a 100 percent disbled Vet, not only worked for VA while collecting her 100 percent, but is a big, big shot.  I hear she got out of VA and joined the 2 above, who are 100 percent and are into politics.  

The facts are that VA can/does reduce Vets who improve, but that happens independently of whether or not they apply for an increase.  

While its true, when you seek additional benefits, many eyes will be on your claim, the fact remains that VA has laws, and these prevent reducing Veterans who dont meet the applicable "improvement" criteria as follows:

(Note the 5 year protections only apply to P and T Vets, or those who have been rated 5 years or more):

3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[ 26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993]
 
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Yes, you can tie it to OSA, provided that a doctor writes in your records that your heart attack was "at least as likely as not" due to OSA (which is service connected).  

You need that or a similar nexus.  

As far as whether or not its worth it, the stakes "may be" more than money.  

You see, if you die from a "service connected" disoder, you widow (wife) can get DIC, which would be a very very big deal to her, worth about 1200 to 1500 per month for the rest of her life.  If you dont die from a service connected disorder she wont get DIC, UNLESS you have been 100 percent for 10 full years, then it does not matter your cause of death, your wife will still get DIC.  

I will presume you are unlikely to pass from OSA, but a heart problem can be very bad.  Also, even tho maybe you dont have problems with your heart now, you will be eligible for an increase if it gets worse.  

 

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Broncovet,

Thank you for your response, I am starting to do more research as your points on the spouse benefit are significant to me regardless if I get much of a rating now. 

One concern I have is I don’t want to lose the rating I have, is there a risk to that?  I had not been using the CPAP nightly until 2 years ago when I started putting it on every night but normally rip it off.  8 months ago VA replaced my CPAP (which was also the first time I went to them regarding my sleep apnea) and this one tracks how many hours I use it and I don’t reach the 20 days in a 30 day period with at least 4 hours use needed to be considered effective treatment but this is improving.

None of my disability items have improved and in fact my back, my eyes and my allergies (moved to San Antonio and the ceder is death around here) are all worse...

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Did your Cardiologist opine as to a possible etiology of the MI? What's the Date of your CSA DX? Are you on BiPAP with supplemental 02?

Back in 2010, my non VA Sleep Neurologist put the "More Likely than Not, MSA was linked to my 2006 CAD B-Pass surgery in his Treatment Notes. 2 months later I got the Secondary 50% Award.

2016 VA heart Echo indicated low end Pulmonary Hypertension had developed. Filed an FDC SA Secondary right away, within 2 months got a PH SC 0%, but  my SA got bumped from 50 to 100% with an SMC S (1) award about 6 months later.

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      Nicholson, 2006 U.S. App. Vet. Claims LEXIS 1393. More specifically, in Washington v.
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      appellant’s assertion...” of an in-service injury, disease, or event. Id.
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      Secretary to obtain.” §38 U.S.C. § 5103A(c)(1)(C); §38 C.F.R. § 3.159(c)(2); Loving v.
      Nicholson, 19 Vet. App. 96, 102 (2005). Efforts to obtain records in the custody of a Federal
      department or agency must continue unless “...VA concludes that the records sought do not exist
      or that further efforts to obtain those records would be futile.” 38 C.F.R. § 3.159(c)(2).
      “If VA . . . after continued efforts to obtain Federal records concludes that it is reasonably
      certain they do not exist or further efforts to obtain them would be futile, VA will provide the
      claimant with oral or written notice of that fact.” 38 C.F.R. § 3.159(e)(1). The notice must (1)
      identify the records VA was unable to obtain; (2) explain what efforts the VA took to obtain the
      records; (3) describe any further action VA will take regarding the claim; and (4) notify the
      claimant that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-
      (iv).
      Negative evidence and mischaracterization of claims. The Board may not consider the
      absence of a medical notation to be negative evidence when there is no reason a medical
      examiner would have commented on a particular matter. Buczynski v. Shinseki, 24 Vet. App.
      221, 224 (2011). See Douglas v. Shinseki, 23 Vet. App. 19, 25–26 (2009) (“...the duty to gather
      evidence sufficient to render a decision is not a license to continue gathering evidence in the
      hopes of finding evidence against the claim”).
      The Board may not mischaracterize veteran’s claims. Mischaracterization of claims may
      lead to considering issues outside of “...the scope of the appeal, applying the wrong law, and
      engaging in the wrong analysis.” See Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014) (the
      Murphy Court recognized mischaracterization of claims as the catalyst to improper reduction of
      claims, which the Court indicated has a “...’chilling effect’ in the administrative appeals
      process...”).
      Medical treatises. A medical article or treatise “...can provide important support when
      combined with an opinion of a medical professional” if the medical article or treatise evidences
      “...generic relationships with a degree of certainty such that, under the facts of a specific case,
      there is at least ‘plausible causality’ based upon objective facts rather than on an unsubstantiated
      lay medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998); see also Wallin v. West, 11
      Vet. App. 509 (1998).
      “A veteran with a competent medical diagnosis of a current disorder may invoke an
      accepted medical treatise in order to establish the required nexus; in an appropriate case it should
      not be necessary to obtain the services of medical personnel to show how the treatise applies to
      his case.” Hensley v. West, 212 F.3d 1255, 1265 (2000). “An ‘evaluation’ of treatise evidence
      should be made in the first instance by the BVA.” Timberlake v. Gober, 14 Vet. App. 122, 131
      (2000). If the Board fails to consider medical-treatise evidence by the veteran, the Court will
      remand the case to “...the Board to evaluate “that evidence” to see if it supports a nexus.” Id.
      Due process. Veteran also contends the Regional Office’s (RO) failures as expressly
      asserted in this Notice of Disagreement rise to the level of the Secretary’s denial of Veteran’s
      procedural due process protections, guaranteed to U.S. military veterans by the Fifth
      Amendment, U.S. Constitution. See Cushman v Shinseki, 576 F.3d 1290 (Fed. Cir. 2009).
    • By brokensoldier244th
      I was looking at Ebenefits under the 'disabilities' section, and I noticed that, with CPAP, my Sleep Apnea rating is listed as 20% rather than the expected 50. I had to appeal my sleep apnea 1 time to get SC. Has anyone ever seen this? It looks like it is numerically at 20, but they paying it at 50? Misprint? 
       

    • By JonathanAD
      I filed a claim for Sleep Apnea secondary to my PTSD, which is service connected.  I have been diagnosed from the VA as having sleep apnea, and given a CPAP to wear at night.  I used Carpenter Chartered Law Firm to do the claim, but got this denial letter (attached is an excerpt).  In it, it says "In the absence of other major risk factors such as obesity it would be reasonable to attribute OSA to PTSD as this is considered a risk factor for OSA from uptodate.com".
      My thought is that if both obesity and PTSD are considered risk factors, shouldn't it be a 50% chance that it could be either obesity or PTSD, and go to the veteran's favor?  And doesn't that mean that attributing OSA to obesity is just as speculative as attributing it to my PTSD?
      I had Carpenter Chartered start an appeal, so I am hopeful to get it approved.  

    • By Al329
      Hi,
      Anyone use a private company for a home sleep study?  If so who did you use?

      Reason, I am currently in a remote location and would be a reach to travel to any VA sleep study.

      Thanks!
      Al
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    • This is the latest Compensation & Pension (C&P) Clinicians Guide dated 20180719. The only other one I've seen is dated 2002, including the one on this website and the VA website. I got this from my claims agent, who got it from the VA.

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    • I don’t say thank you enough to all of you...
      You, yes you, are the reason HadIt.com has remained a resource-rich resource. Thousands come each month to read, ask questions, or to feel a sense of community.

      Last month June 2020, we over 50k visitors they viewed over 160k pages. Veterans and their advocates, spouses, children, and friends of veterans come looking for answers. Because we have posts dating back 15 years and articles on the home page, they usually can find an answer or at least get pointed in the right direction.

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