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Asthma combined with OSA...wrong rating?!?


sphynix06

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I am in the middle of a battle with the VA over a 50% rating for OSA with CPAP. 

My current ratings are:

100% PTSD

30% Asthma with OSA

10% Tinnitus

0% Hearing Loss

0% Left Foot

10% Scar

 

I initially applied for Asthma and OSA in August of 2016. I was awarded 30% for Asthma in February 2017, but was denied OSA. I asked for reconsideration and was sent to another sleep study. I was eventually granted service connection based on OSA aggravated by Asthma in June 2017, but was not bumped up to the higher rating of 50%.

 

The VA "award" letter stated that I couldn't be separately rated for Asthma and OSA and that the baseline is always deducted before a percentage is determined. It wasn't clear in the letter how they determined a baseline of 50% because there was no medical evidence of pre-service OSA. The C&P examiner even stated that my baseline was zero. This tells me that there should be no deduction due to natural progression and that the predominate condition is OSA.

 

While I understand that I can't receive separate ratings for the two respiratory conditions, I thought that I was to be awarded the percentage of the predominant condition which in this case is OSA with CPAP at 50%. 

 

I seems like the VA is trying to avoid giving me the 50% for OSA because doing so would allow my other conditions that are separate from my PTSD to add up to the required 60% for SMC-S (statutory housebond). Has anyone experienced this situation before? How did you proceed?

 

Thanks for your insight.

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sphynix06 

From what I understand of pyramiding the higher of the two ratings should go to the vet.  Just like you are saying if you war connected for both conditions then there should be no reason for denial.  

What stage of the process are you at?  

Also this almost sounds like a CUE.

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I agree with sphynix06.  If you are in the appeal period (one year from the decision), just appeal.    However, you posted:

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in August of 2016. I was awarded 30% for Asthma in February 2017, but was denied OSA. I asked for reconsideration and was sent to another sleep study. Iwas eventually granted service connection based on OSA aggravated by Asthma in June 2017, but was not bumped up to the higher rating of 50%.

Hopefully you appealed this in time, within the year.  I agree with you..it sounds like they deliberately low balled you to keep from paying you SMC S.  

But, keep your "eye on the prize".  It does not matter, when you spend your money.  When you go to Kroger, does the clerk ask you, "Wait..is this money from Statuatory SMC S, or did you win it under Howell?"  

So, you should persue all manners of appeals, not JUST statuatory SMC S, that you mentioned which would require you have 100 percent plus a combined 60 percent, seperate and distinct.  

Read this, and see if it applies to you.  Im guessing it does.  

In relevant part:

Quote

The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.

 

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

Now, when "congress intent" is clear, I heard the Supreme court say, "That is the end of the matter".  

Im fighting VA on this exact same issue, by the way.  I have 100 percent, but am not sc for sleep apnea, even tho Im on a cpap.  

Remeber, when you got your "single" 100 percent for PTSD, the M21 requires they "adjuticate SMC S".  Did they?  If not, that is clear error, in conflict with the M21's.  

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