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Hello group -
I had a sleep study in 2007 while on active duty and got diagnosed with "mild obstructive sleep apnea." There was no treatment provided/necessary.
I retired from the Navy in 2017 after 25 years of active duty and submitted the sleep study in my claim. Unfortunately, I did not have documented proof of hypersomnolence. In May 2018 I had another sleep study with the result being "severe obstructive sleep apnea," and was prescribed a CPAP which I use currently. This particular evidence was not submitted in my claim package.
I just received my VA decision letter on 10/4/18, the VA assigned a disability rating of 0% for the apnea (as expected), but listed it as "service connected."
My question is this: I have the medical evidence now to prove I have severe apnea and I'm getting ready to submit a NOD. Do I have to also prove "service connectivity?" or has this been sufficiently established and cannot be taken away by the DRO?
Also, do I have to provide evidence that I had hypersomnolence from 2007 to 2018 to prove it's all connected? This will be the tough part for me.
It seems pretty straight forward, but I know nothing is ever a slam dunk in this arena so what am I potentially missing?
I first experienced kidney problem while on active duty as a Marine Security Guard in Addis Ababa, Ethiopia in 1994. The doctor treated me as having been dehydrated. Years later, in May 2012, I experienced my first official Kidney Stone at 9 mm on left side, which I had to have a lithotripsy. In 2016, I developed a second kidney stone measuring at 6 mm on right side, treated by VA in Ann Arbor, MI. In June 2018, I developed my third kidney stone measuring 3 mm on right side, treated by VA Ann Arbor, MI. VA doctors informed me that I still had several smaller stones in both kidneys. In July 2018, I developed a fourth kidney stone measuring 4 mm on left side, a stent was implanted, and tomorrow I am scheduled for another lithotripsy. While, awaiting the lithotripsy, it appears i have another stone developing on the right side again.
While in Ethiopia, I was constantly in Eritrea and Massawa having swam in the Red Sea. I do know that Gulf War Syndrome lists the Red Sea as an area of claim but during the Southwest Asia Threat. It appears, that I should still be service-connected but I'm unsure as personnel at Battle Creek, VA, suggested that I couldn't claim Gulf War Syndrome. This was also prior to my diagnosis of fibromyalgia. To add, I was also stationed at MWSS 272 New River Airbase during 1990, where vehicle were being painted as well as a motor transport driver moving airplane and helicopter parts and working in the areas of jet fuel during the commencement of wartime.
What if any course of action do I need to take to have these service-connected as it relates to kidney stones and fibromyalgia? I am already 70% TDIU, for tennitus and PTSD. I have been diagnosed finally as having fibromyalgia in June 2017, for which previously I was denied neurological disorders. I am a diabetic with, high blood pressure and 16 of 18 points for fibromyalgia.
Will/can a 100% TDIU P&T award get removed if my service connected disabilities reach or top 100% ?
I ask this because I am +5yr into my appeal process and have received a "partial award" from the VA, as the rest of my appeal moves forward. I was given an increase to 70% TBI to qualify me for 100% TDIU which started last year. Already have 10% Tinnitus.
Still on appeal is:
MDD -- Arguing for 70% but probably will get 50% Sleep Apnea -- OSA with CPAP required to be rated at 50% My lawyer is inferring that I would be in jeopardy if I try and get +100% Scheduled award disability. I have also heard from a fellow poster (I referred to same lawyers) who informed me that after getting his early/easy disability award, this firm dropped him on his appeal moving forward. In other words, they took the easy money/award and ran on the tougher stuff.
What my lawyer currently predicts my disabilities totaling at 94% (70-BTI, 50-MDD, 50-OSA,and 10-Tinnitus) which rounds DOWN to 90% award. He does not want to appeal further, apparently.
My lawyer's inference that my 100% TDIU would be in jeopardy if I continue to pursue my scheduled appeal status, just does not sound right to me, but how can I know for sure?
§3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.By HorizontalMike
38 CFR Book B 3.310 mandates secondary service connection for certain disabilities associated with traumatic Brain Injuries (TBI)
I have a couple of QUESTIONs since my MDD rating is still in limbo at the VARO:
What does it mean by "...the secondary condition shall be considered a part of the original condition….” Does that mean MDD is to be rated separately as secondary service connected to TBI? OR,does that mean that MMD cannot be rated separately from TBI and receives just ONE rating? How can secondary service connected disabilities avoid the "pyramiding" accusation?
§3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.
(a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.
(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. (Authority: 38 U.S.C. 1110 and 1131)
(c) Cardiovascular disease. Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service-connected amputation or amputations.
(d) Traumatic brain injury.
(1) In a veteran who has a service-connected traumatic brain injury, the following shall be held to be the proximate result of the service-connected traumatic brain injury (TBI), in the absence of clear evidence to the contrary:
(i) Parkinsonism, including Parkinson’s disease, following moderate or severe TBI;
(ii) Unprovoked seizures following moderate or severe TBI;
(iii) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI;
(iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; or
(v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI.
(2) Neither the severity levels nor the time limits in paragraph (d)(1) of this section preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. If a claim does not meet the requirements of paragraph (d)(1) with respect to the time of manifestation or the severity of the TBI, or both, VA will develop and decide the claim under generally applicable principles of service connection without regard to paragraph (d)(1).
(3) (i) For purposes of this section VA will use the following table for determining the severity of a TBI:
Normal structural imaging
Normal or abnormal structural imaging
Normal or abnormal structural imaging
LOC = 0–30 min
LOC > 30 min and < 24 hours
LOC > 24 hrs
AOC = a moment up to 24 hrs
AOC > 24 hours. Severity based on other criteria
PTA = 0–1 day
PTA > 1 and < 7 days
PTA > 7 days
GCS = 13–15
GCS = 9–12
GCS = 3–8
Note: The factors considered are:
Structural imaging of the brain.
LOC—Loss of consciousness.
AOC—Alteration of consciousness/mental state.
GCS—Glasgow Coma Scale. (For purposes of injury stratification, the Glasgow Coma Scale is measured at or after 24 hours.)
(ii) The determination of the severity level under this paragraph is based on the TBI symptoms at the time of injury or shortly thereafter, rather than the current level of functioning. VA will not require that the TBI meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level. If a TBI meets the criteria in more than one category of severity, then VA will rank the TBI at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels. (Authority: 38 U.S.C. 501, 1110 and 1131)
[44 FR 50340, Aug. 28, 1979, as amended at 66 FR 18198, Apr. 6, 2001; 71 FR 52747, Sept. 7, 2006; 78 FR 76208, Dec. 17, 2013]
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.?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.?
Vync posted an answer to a question,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?
Buck52 posted an answer to a question,Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.
The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.
Picked By66 bricks,