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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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navyguy357

Should I appeal?

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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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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