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    • The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
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    • Wonderful news way to hang in. I hope this gives you some well deserved peace. 
    • If HadIt.com has helped you or you believe in it’s mission then please donate even $1 helps. I hope HadIt.com has provided $1’s worth of help to you. Imagine waking up and there is no HadIt.com it could happen and that is why I’m asking for your help now.



       



      Our traffic is going up and so are our expenses, however revenues have gone down and so I am reaching out to you to see if you can help me keep Hadit.com up and running.
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    • https://community.hadit.com/searching-for-va-claims-information-on-hadit.com/

       

      Your question has probably been asked before so the fastest way to find the information you need is to search for it.
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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
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Willy P

Supplemental Claim Approved- HLR for Effective Date?

Question

Good Afternoon Team,

Short back story/timeline:

  • Left Active Duty: August 2015
  • Diagnosed with Sleep Apnea February 2016 (6 months later)
  • Submitted claim in May 2016 with my evidence: 
    • Sleep study
    • DBQ
    • In service complaint of snoring exerpt from my medical record
    • Favorable C&P Exam opinion (at least as likely as not...)
  • VA Denied my claim in August 2016
  • I did nothing because I didn't think I could come up with any other evidence

Fast forward to last year.....

I scratched some pennies together and paid for an IMO, then submitted the letter via a supplemental claim.  I was awarded SC for sleep apnea at 50% within a month of the VA receiving my claim.  Success!  Here is the link to that process in the research forum: 

 

So here is my line of thought...

Can I use HLR to fight for an earlier effective date, or do I have to use CUE?  I mean, the VA had everything it needed to make the proper rating the first time (In-service event, nexus from the C&P doc, current diagnosis...).  I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor.  Why would the rater place his/her opinion over the VA's own doctor?  Shouldn't the benefit of the doubt have gone to me?  From what I understand, I can't CUE the benefit of the doubt anyway.

Since I am within the appeals period of the supplemental claim, I'm thinking the easiest path may be to request HLR in order to ask them to CUE themselves on the 2016 decision.  Is that possible?  I'm just trying to avoid CUE if I can, since it's mainly a "last resort" type of measure.

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Congratulations on winning SC! 

Your claim is finished, but not finalized. It becomes final when your appeal window expires. One of the requirements for CUE is that the claim be final. HLR, supplemental, or BVA appeal options are still available and would probably be the best choice. You have a lot more options available via appeals than with a CUE. 

1 hour ago, Willy P said:

Can I use HLR to fight for an earlier effective date, or do I have to use CUE?  I mean, the VA had everything it needed to make the proper rating the first time (In-service event, nexus from the C&P doc, current diagnosis...).  I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor.  Why would the rater place his/her opinion over the VA's own doctor?  Shouldn't the benefit of the doubt have gone to me?  From what I understand, I can't CUE the benefit of the doubt anyway.

I agree with you 100%. Keep in mind that the VARO does have certain standards when they review a C&P. Just because it says "as least as likely as not" doesn't mean they can or should grant SC. Imagine if your friend was an LPN (nurse with 2 year degree) and wrote you an IMO. The VA would probably disqualify it because the LPN was not sufficiently qualified to make the opinion. Then the VA would refer you for a C&P with a qualified examiner.

See the link I posted below. It includes a section on how to review examination reports. They have a checklist of things to confirm. If an examination is insufficient, the VARO can kick it back to the C&P doc for clarification or re-examination. However, the VARO cannot simply discard the C&P exam outright. They have to be able to explain why the exam was not adequate or was rejected.

 

M21-1, Part III, Subpart iv, Chapter 3, Section D - Examination Reports

Article ID: 554400000015812

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015812/M21-1-Part-III-Subpart-iv-Chapter-3-Section-D-Examination-Reports

 

 

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Thank you for the link!

I have to admit, I got a little optimistic while reading about HLR.  I would look forward to having a phone call with a reviewer to state my side of the situation.  It sounds like HLR is the next logical step, since I won't have any new evidence and it is much quicker than VBA.

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On 2/13/2020 at 10:23 PM, Willy P said:

Thank you for the link!

I have to admit, I got a little optimistic while reading about HLR.  I would look forward to having a phone call with a reviewer to state my side of the situation.  It sounds like HLR is the next logical step, since I won't have any new evidence and it is much quicker than VBA.

Any updates Willy?

I have the exact same situation. Submitted in 2016 and 2019 for OSA and the imo in April got me sc but my ED is April 2020. All the physical medical evidence was the same as before, all the imo did was prove what I was saying in 2016/19 was true and the va was wrong. Wanting to change my ed and hoping you had some updated info 

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On 6/21/2020 at 8:00 AM, USMC_VET said:

Any updates Willy?

I have the exact same situation. Submitted in 2016 and 2019 for OSA and the imo in April got me sc but my ED is April 2020. All the physical medical evidence was the same as before, all the imo did was prove what I was saying in 2016/19 was true and the va was wrong. Wanting to change my ed and hoping you had some updated info 

Hey brother,

HLR is still pending as of now, been going on 5 months.  I'm not entirely confident, but I wanted to try HLR before submitting a CUE.

I try to post all updates in my original thread so it may help someone out some day:

 

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Posted (edited)

My advice?  Dont use HLR.  Instead go directly to the BVA where you have better than  2/3 chance of winning or at least a remand.  Source: BVA chairmans report.  https://www.bva.va.gov/Chairman_Annual_Rpts.asp

In the newest BVA Chairmans report, the board awarded 35.7 percent of Veterans appeals and remanded another 38.9 percent. If you add these, that is about 75%.  Remember, tho, at least some of the board denials will be remanded or granted at the CAVC, so your chances, in 2019 are actually over 75 percent.  I have heard several numbers about percentages at the VARO (including HLR and SCL) but mostly about 80-90 percent of those are denied.  This is especially true with HLR.  Remember, a fellow employee has already denied, and its super easy to follow the previous rater's lead and stamp it "denied again".  Its much harder to call your fellow employee out and essentially call him/her a liar and award benefits he or she previously denied.  

Reason:  Do you think the VA allows rather "low level" employees authorizing a six figure check for retro without direction from a judge or "high level" VA employee such as VARO Director or VASEC?  I dont.  

Quote

If any Vets here have won "significant Retro" (over 25 k) at a HLR without a previous BOARD decision or higher, please correct me. ...crickets.....I didnt think so.  

This means you need to get your claim to the Board as soon as possible, and you dont need a distraction such as HLR.  

    While I did win some benefits from a DRO decision (which is the equivilant of a combination of SCL and HLR), it wasnt before I filed a Writ of Mandamus where the VARO director had to respond to the court some of the actions regarding my claim.  My DRO decision was obviously "under the direct influence" of a high level employee.  

     You are welcome to try the HLR.  But, if the retro is significant, probably over 25,000, dont hold your breath.  

Edited by broncovet

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  • Similar Content

    • By USMC_VET
      After Denials for OSA both direct and secondary to PTSD, this spring I decided to spend the money on a IMO and do the claim right.  I contacted Dr. Anaise and was told to send all my records, decision letters and $1500.  
      After about a week I was emailed with a final IMO report that was around 40-50 pages.  It was excellent & well researched. Within 6 weeks of submitting the IMO with a supplemental claim OSA secondary to PTSD was approved.
      Yes IMO's dont guarantee anything and they can be expensive but they are definitely worth it when you have been denied already and have nothing else to submit and someone like Dr. Anaise will always outweight the NP the VA usually has doing exams.
    • By USMC_VET
      A little background first on this specific claim to provide greater context for the readers.
      I had no idea that i had OSA until i got married and through the years my wife has told me about how i would snore really loud, stop breathing at night, choke, etc. pretty standard stuff for anyone that has it.  I had buddies in the Marine Corps who told me the same thing after our first deployment, but i had always chocked it up to my dad snored so i snored, the stopping breathing thing was weird but i was 18/19 so your health isnt a primary concern and BAS is only for bones sticking out.  I got out in 2006 and didnt make a claim for OSA until 2016.  First i talked to my primary care then was referred to a VA pulmonologist. He ordered a sleep study and the VA fumbled it sending me to a private facility and did a in home test. When the results came back i saw in my VA health record the Pulmonologist was terse with his message saying he wanting a in facility sleep study so a month later i did mine at the VA overnight.  I was diagnosed with Mild OSA and given a CPAP.
      When the CPAP arrived i spent a month trying to get it to work but every morning it would show only 45-60 minutes of time.  I have nightmares at night, some i remember some i dont but would rip off the mask or when i woke up would be so worked up i didnt put it back on.  I do cycles of trying it for awhile and stopping for awhile, giving it a chance because my wife is worried about the OSA and its health effects. 
      My claim history was this, as i stated i made my first claim in 2016 and was denied.  I reopened the claim (when that was still an option in 2018) and was denied again.  What i submitted was bascially the VA medical record showing that i had it, that i was ordered a CPAP and sworn statements by myself, my wife and buddies in the Corps that stated they saw symptoms in 2003-2006.  I had NO nexus or medical proof that it began in service
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      When i submitted the claim (reopen was still available as an option on ebenfits) my new claims, increase and "reopen" were all lumped together as one big claim and sent off in April. As a sidenote whenever i send my claim i do so through ebenefits as well as fax AND send CERTIFIED MAIL WITH RETURN RECEIPT. i keep a copy of the USPS receipt with tracking, Cert Mail receipt and the return receipt and staple that together with my hard copy claim evidence in a folder for each claim ive ever made.  The VA has a way of "losing" evidence and if you ONLY submit via ebenefits, regular mail and/or fax you cant prove they received it per say.  This DOESNT mean they wont pretend they didnt get it but what it does is allows you to prove upon appeal that YES you did send it in the time window necessary for your claim AND that they did receive it because the return receipt shows Jim VArep did in fact get it on such and such day. So if you get denied its really important to look at your cfile after to see what evidence the rater actually looked at and if they dont have ALL the evidence in that file you can appeal on those grounds in conjunction with more evidence if necessary that X doctors exam or IMO proves your case, wasnt considered AND the VA had received it.
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      6) I didnt do this for this claim although i should've and kept a diary of when i was using the CPAP, roughly when i ripped it off, data on how long i wore it, frustrations over not being able to wear it, info on my nightmares causing me to rip it off etc.  years of diary entries wouldve been a help. I didnt need it in the end but if you cant afford a IMO things like this can help because theres NO SUCH THING AS TOO MUCH EVIDENCE.  A diary is one of the key things that helped me win my migraines case.  for months prior I kept a diary of my headaches and effects, then transcribed them into ebenefits health diary.  I am not perfect at it but i now write as much as i can as often a i can in this diary about ANY service connected or possibly service connected illness (especially things that could be considered aggravated by a service/possible service connected disability).  That way when you are making a claim or fighting a reduction you can pull out timestamped entries for months/years relating to it and it makes it harder for a rater to think you pulled this out your but last month to make a claim. 
       
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    • By Wise Guy
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    • The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
      • 4 replies
    • Wonderful news way to hang in. I hope this gives you some well deserved peace. 
    • If HadIt.com has helped you or you believe in it’s mission then please donate even $1 helps. I hope HadIt.com has provided $1’s worth of help to you. Imagine waking up and there is no HadIt.com it could happen and that is why I’m asking for your help now.



       



      Our traffic is going up and so are our expenses, however revenues have gone down and so I am reaching out to you to see if you can help me keep Hadit.com up and running.
      • 4 replies
    • https://community.hadit.com/searching-for-va-claims-information-on-hadit.com/

       

      Your question has probably been asked before so the fastest way to find the information you need is to search for it.
      • 3 replies
    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
      • 2 replies
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