sleep apnea deferred + tinnitus Sleep apnea deferred + Tinnitus

[Semperguy]

Hi fellow vets, I have been in the shadows learning and reading on this forum for awhile and decided to register as I need some help with my claim. I have a couple of questions. 

I got my decision letter yesterday which is dated for 01/25/2021. 

 

1) I got awarded Tinnitus 10% but the effective date is 11/24/2020. I believe this is wrong since I submitted an Intent to file on 11/25/2019 and have paperwork/copies to prove. Any suggestions on the best route to take to contest this and have it corrected? 

2) My decision letter also states " A decision on entitlement to compensation for sleep apnea is deferred" on page 3 also states "The issue of compensation for sleep apnea is deferred for the following information: VA Medical Opinion"

      a. That is everything on the letter regarding the sleep apnea 

 

To give you some background info on the sleep apnea I was tested at the VA for a sleep study back in 06/2019 due to sleep issues I was having which I shared with my VA psych doc. The sleep study showed I have sleep apnea and I was assigned a CPAP machine the same month and have been using it since. I was seen by LHI in 01/2021 since I put in a claim for "Sleep apnea secondary to PTSD".

I was honorably discharged from the Marine Corps 08/2013. I was service connected for PTSD 70% and right wrist strain 10%. I am service connected for many other issues at 0%.  I am going to the VA regularly and taking medicine for my PTSD. I had also filed an increase for my PTSD with the claims mentioned above but that stayed at 70%. After reading much on here I believe this rating is correct since I am working part time from home. I had believed to be 100% for many reasons as my journey has been very tough but I am taking it one step at a time. 

 

I appreciate any help and guidance I can get on this. It has been pretty stressful but the vast knowledge I have gotten here has been priceless and has given me the confidence to create and pursue my claim. 

 

[GBArmy]

Semperguy Welcome to Hadit You have done what a lot of veterans do; watch and wait and read. Then read some more. As for the effective date, EED, you get when it is found or when you have filed, which ever is later, so if your evidence shows that you had Tinnitus before you filed then you should be entitled to your date of submittal, in you case date you filed your ITF. You can submit an appeal via Higher Level review for that. The VA often does that and the veteran often lets it slide and doesn't appeal. On your OSA as deferred, the VA is going to an expert (another doc) to get an opinion on it. They may try to say it is part of  your MH/PTSD award. You'll have to wait on the decision letter to find out on that one. You could call Peggy, 800-827-1000 and ask the rep if he can tell you anything at all about where it is. Most likely you won't get any reliable answer. If you have a VSO, they may be able to see if their are any hints in your c-file, that takes a little time to research. One more thing, you could consider applying for TDIU if your part time work isn't meeting the financial limitations of regular employment. But if you are doing well at it, I would think it would be a hard sell unless you can prove you can only work so many hours in a week. You best bet is to work on increasing your disability ratings if you can if you have "many". You must know what your increases must be to get to a combined 95%, therefore 100% rounded. Use a disability calculator. Look up the criteria for those disabilities and see if your symptoms have gotten worse. Do not submit if they don't meet the criteria. Know what the minimum symptoms are to get ratings per their diagnostic codes.

[broncovet]

Welcome to hadit.  This is an excellent example of "why not" to use ITF:  Va messes it up (again).  They dont read our file carefully, and miss the ITF.  So, now you have to spend months or years correcting this very frequent VA error: (Not noticing the ITF and awarding at the wrong effective date).  

 

You may try a cue, as this is obvious error, but, it raises the level of review and you miss out on benefit of the doubt.  Or you can file a NOD, and hope its fixed with HLR or SCL.  

Chances are fairly good VA "lost" your ITF, so, hopefully you have proof of mailing.  When its your word (that you mailed it in) vs a VA employee saying, "We didnt get it", you lose.  

If you have a copy of the ITF (electronic or paper) try sending that, with a SCL.  (SCL allows "new evidence", where HLR does not. 

Best if you view your VBMS file (now called efile) at a VSO office and see if the HLR is there.  

I have seen this same question before (VA awarded the wrong effective date not counting ITF), so that is why I dont recommend ITF.

INSTEAD OF FILING AN ITF, if you filed for benefits on that same day, you would get the same effective date, but you would not have to appeal VA missing (or losing) your ITF.    (That is, you would get 11/25/19 as your effective date, the date you applied. )

 

Edited February 11, 2021 by broncovet

[broncovet]

Now, onto sleep apnea.  Do you have a nexus (doc opinion your sleep apnea is at least as likely as not related to your (SC) pTSD?  

If you dont, you will need that to get benefits for sleep apnea.  You can work on getting it now, if you dont have it.  YOU may need an IMO.  

[Buck52]

on the ITF  looks like you waited to long to file   there is only one day difference on the ITF IF YOU FILED THE ITF on 11 -25-2019  and your decision date is 1-25-2021 with an effective date 11-24-2020  you should have filed prior to the 11-25- 20 date   that's only one day...you got to allow for the mail to get there  and they most likely got it to late    you only have 1 year to file and you must file at least a week before the year deadline on the ITF   to allow for the mail to get to the VA.

THIS IS JUST MY OPINION ON THE ITF  Filing.  you lost the year  if they received it 1 day to late.  IF You have the postmarked envelope to show your dates  THE VA RECEIVE IT within 1 year. (You should be ok)

example  say you filed the ITF ON 1 20-20    THEN  THE VA needs to get it before 1-20-21   they actually need to get it before your year expires   so you need to allow for the mail to get there  at least 7 days  a lot of it is when you sent it and have the post mark to prove it  and when the VA Received it.

one day is way to close  to file the ITF.  BECAUSE THEY GO BY THE DATE THEY RECEIVED IT. IF THEY SHOW TO HAVE RECIVED IT AFTER 11-25-20   THEN YOUR YEAR DEADLINE WAS UP.

Edited February 11, 2021 by Buck52

[Semperguy]

Thank you so much for getting back to me gents! @GBArmy @broncovet @Buck52

 You three are some of the vets on here I have followed the most and have seen help this community tremendously.

 

The effective date of 11/24/2020 was when I submitted the online application through VA.gov, I did not mail it in - so yes I did cut it close but it seems to still be within the year from when I filed the ITF electronically on 11/25/2019 which I do have paperwork to prove - The va.gov site actually confirmed I was within the year so looks like I should be good to go there I just have to now look at doing one of the processes you all recommended. Thank you for this guidance

 

What really confuses me and makes me uneasy is the sleep apnea being "deferred". So since I received my decision letter is this claim paused at this time while they look into it and I need to just standby OR do I have to submit an NOD/SCL/HLR/CUE ? 

No I do not have a nexus or an IMO for the sleep apnea, just the sleep study from the VA and the CPAP from the VA, which is in my VA records and I had submitted copies of this for my claim. I want to be proactive with this. Is this something you recommend I get at the VA? or is it better that I get it elsewhere? 

 

Edited February 11, 2021 by Semperguy

[Buck52]

Thanks

This is what makes Hadit so wonderful  the people on hadit   and if one of us don't know  the others will  and  hadit just keeps getting better and better.