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Should I appeal?

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navyguy357

Question

Do I have a case to appeal to get back pay to my initial predischarge exam?

Honorably discharged March 2005 with 30% disability. Received 0% SC for restricted lung disease (claimed as obstructive sleep apnea- this is exactly how it is written on my VA decision letter at predischarged exam).

Service medical records with documented issues of sleep disorders

2012- Sleep Study diagnosed as obstructive sleep apnea -( Naval Hospital referral 3rd party)

2016- Sleep study diagnosed as obstructive sleep apnea, issued CPAP

Filed claim for sleep apnea in Jan. 2017

Granted 50% for obstructive sleep apnea.

My decision letter states: The examiner indicates the new dagnosis is a correction of the previous erroneous diagnosis. There is no current diagnosis  of restrictive lung disease. You were previous denied because you failed to complete a sleep study to confirm the diagnosis.

 

My question....Do I have a case to appeal to get back pay to my initial predischarge exam (2005) and not to my intent to file in Jan. 2017

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  • Content Curator/HadIt.com Elder

That's a good question, but it might be an uphill climb. The catch is when the CPAP machine was issued and began to be used.

The VA would likely respond like this: The rating criteria for 50% requires use of a CPAP machine. You met the criteria around the 2016 - 2017 time frame, not in 2005.

 

From: https://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5

6847   Sleep Apnea Syndromes (Obstructive, Central, Mixed):  
Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy 100
Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine 50
Persistent day-time hypersomnolence 30
Asymptomatic but with documented sleep disorder breathing 0

[61 FR 46728, Sept. 5, 1996, as amended at 71 FR 28586, May 17, 2006]

 

 

 

 

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