Not Sure - Would Really Like a Consensus

[harry59]

Fellow Veterans,

A couple of days ago I found out that I was awarded 100% P&T. I was at 80%, but my mental health claim (that was finally decided on) pushed me over the line. I do not have my Decision Letter yet so I do not know any specifics. Now that I'm P&T, I'm really on the fence as to whether or not I should fight for my denied secondary claims of Hypertension and Obstructive Sleep Apnea (OSA). I'm not sure for a couple of reasons:

1. I'm not sure if, at my age (62), I will ever be reevaluated for mental health, which could possibly lead to a rating reduction in a future C&P exam. Is there an age limit where the VA will not reevaluate mental health claims? I know the M-21, Part IV, states that "with only rare exceptions, veterans over the age of 55 will not be recalled for reexamination." but I'm not sure if that pertains to mental health claims.

2. As you know, DIC can be awarded to a spouse if the veteran had been P&T for at least 10 years, or if the veteran dies from a service-connected illness or injury. DIC for my spouse is the primary reason I would fight for my denied secondaries as it is likely that hypertension and/or OSA could likely be a contributing factor in death. I know the VA is looking at changing the rating schedule for OSA, which will not benefit veterans.

So, should I continue my fight???

 

Thank you to all repliers!

[harry59]

broncovet, that is great information. I didn't know that about SMC-S. Thank you. And thank you to all who replied. 

Now I have to choose which route to take - HLR or BVA. Hmmmm

[brokensoldier244th]

In an supplemental HLR (20-0996) you can't submit new evidence- it only is allowed to review the evidence of record. If you submit a supplemental, you can, but its at the local level (20-0995). If you go for a Board appeal (not local level) then there are a few ways you can do it. 

 

https://www.vba.va.gov/pubs/forms/VBA-20-0998-ARE.pdf

[Dustoff1970]

Broncovet is exactly correct in his statement to you. 

For your info I just recently won an OSA Sleep Apnea with CPAP appeal as secondary to my long term Vietnam PTSD and IHD Heart Disease (CAD) with automatic additional SMC-S from the BVA. 

The VARO is usually quick to deny many of these OSA claims but many vets like me win the claims at the BVA even tho  slightly overweight like me.

Like he said if you are 100% and receive any additional disibility are disabilities rating of at least 60% for single or 60% combined then this will automatically qualify you for the SMC-S award.  I did not have to file separately for the SMC as the BVA automatically granted it to me with 5 years back pay.

You better file soon for you OSA Sleep Apnea and/or Hypertension (HTN) as VA has recently proposed a  change to the rating schedule for these diseases that is not beneficial to future claimants.

If I am wrong someone will be quick to correct me which is A Okay. 

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

[harry59]

Thank you, brokensoldier244th. Those two claims were denied because the rater at the supplemental level totally ignored the "intermediate-step" that I made VERY clear in my veteran statement. No mention of the intermediate-step in my Decision Letter. I am unable to exercise because of my SC back issues, which of course caused my weight gain. I even had a Nexus from my Sleep Specialist linking my OSA to my weight. 

[brokensoldier244th]

6 minutes ago, harry59 said:

Thank you, brokensoldier244th. Those two claims were denied because the rater at the supplemental level totally ignored the "intermediate-step" that I made VERY clear in my veteran statement. No mention of the intermediate-step in my Decision Letter. I am unable to exercise because of my SC back issues, which of course caused my weight gain. I even had a Nexus from my Sleep Specialist linking my OSA to my weight. 

Intermediate step is exactly how I got mine. I filed it BVA, IIRC, but it was about 5 yrs ago so its a little fuzzy on the details.

[harry59]

I just don't see how VA raters can get away with ignoring The VA regulation regarding intermediate-step claims.  Maybe I should appeal to the BVA and sidestep the HLR.