Can I Appeal The Effective Date? Sleep Apena

[S. Bruce]

I was awarded 30% service connected for sleep apnea when I left the military in 2008. In 2013, I was directed to and took another sleep study. It was found and the VA agreed that I needed to start using the CPAP. VA reviewed the evidence, agreed, paid for and I have been using the CPAP since 2013. In Sep 2019, during a review of my records, my representative informed me that using the CPAP meant that my SA rating should be 50% versus 30%. I filed an increase claim and was increased to 50% with an effective date of Sep 2019.  Shouldn't the effective date be April 2013 when the diagnosis was received and approved? I checked and the 50% rating for using a CPAP was in place in 2013. I wasn't aware of the rating difference at that time, so I didn't file a claim at that time. I'm asking because I'm thinking I may be due some back pay...……….

[ShrekTheTank]

I wish it worked this way.  This is how the VA gets away without paying for benefits.  If you don't ask for an increase they will assume nothing has changed.  They will not automatically give you benefits based off of a doctor changing a med or giving a new diagnosis unless you ask for it.  This is my understanding of it and maybe I am missing something, anyone else please chime in here!

[GBArmy]

S. Bruce Unfortunately for you, Shrek is correct. You would think that you should be paid back to 2013 because the VA diagnosed it. But, it is up to the veterans to ask for the benefit that he has earned. The VA can't be responsible for looking out for the welfare of veterans; my, my. That would end up costing them a whole lot more to do their jobs correctly. So, it was up to you to tell them in 2013 that your symptoms have worsened  and to request an increase. Kinda fits what we say all the time "the VA is not your friend." So by their rules, Sept. 2019 would be the correct effective date. Sorry.

[paulstrgn]

Shrek and GB are correct about the effective date. I agree that the VA is not your friend. In your case the VA medical decided you needed a CPAP but the VA benefits side was never told (the right hand does not know what the left hand is doing). One would think that anything on the medical side would automatically trigger the benefits side, but that is like believing in Santa Clause. 

Since you are over 30% make sure you have your spouse and children listed (if you are married or have children) for you do get paid extra for them.

I am sorry you lost out on extra money, but always remember whenever any medical issues change file for an increase or even a new claim.

[broncovet]

Who, HOSS!   Not necessarily.  You may be due back pay.  It probably would take a review of your file to know for sure.  

There are some special regulations when you apply for an increase (that apply to effective dates) AND there may have been "Clear Unmistakable Error" by the VA if you were only getting 30 percent when you should be getting 50 percent.  Again, I dont know that, it would take a review of your file.  

My advice:  

Take your claims file and ask an attorney who represents Vets.  This is about 6 years of retro potential if there is CUE, such as the VA had the wrong percentage to begin with in 2013.  

Use a NOVA attorney:

https://www.vetadvocates.org/directory/widget_search?current_page=1&sort_type=featured&filter={"additional_info.show-profile-on-sustaining-membership-directory"%3A+"yes"}&asset_type=company_user&display_type=default

   If you contact one of these attorneys and they dont do that type of claim, then they should be able to tell you someone who does.  CCK law is a large firm familiar with effective date law.  So is Glover Luck, and many others.  

[ShrekTheTank]

Thank Broncovet!  I did not think that could be an issue, but you are right the VA loves to pull any crap they can!