Too risky to try 100% schedular from TDIU?

[hiker79]

Hi all,

I just got off the phone with a social worker and he suggested that I go back to the DAV and ask them to try for 100% schedular.  I'm currently at 70%, considered permanent and total, and get paid at 100% level TDIU, since about 2010.  They break it down like this:

Major Depressive Disorder - 70% SC

So I'm wondering if I should go to the DAV again and ask for 100% or should I leave well enough alone?  I certainly don't want to lose benefits.  I also have sleep apnea, proven by a sleep study the VA arranged and the social worker said that was an automatic 50% but I seem to think that the sleep apnea wouldn't factor in, since it isn't service connected.  Thanks for reading-

[hiker79]

4 hours ago, pacmanx1 said:

If you do not mind, can you list all your service-connected disabilities and their current rating percentages? This will help us help you a little better. It is possible that the social worker knows or can see something that you have not shared here that could lead you closer to an increase in rating and or maybe even a SMC rating.  

That’s all I see on VA’s website when I login.  70% Major Depressive Disorder.  Unless there’s another place to find more detailed info, not sure

[broncovet]

You have been given some bad advice:

1.  No, service connection for OSA (aka sleep apnea) is not automatic.  Indeed, you have to apply for it, and almost always appeal (often like you do with most benefits).  SC for OSA is one of the toughest to get, IMHO.  You are gonna need a strong nexus linking your OSA to an event in service, OR a very strong IMO linking your OSA to something like PTSD.  

    Personally, I have OSA and have used a cpap for 10 years.  I applied, VA called for a c and p exam.  There were no docs at VA who were "sleep med" docs, so they had a regular doc, who knew nothing about OSA, opine that it was not related to service.  

     I was awarded SMC S, plus 100 percent for other things at that time, so I opted to not persue the OSA because there simply was no incentive for me to persue this.  It would have made a difference when I applied, but, I was awarded other stuff and it did not matter any more.  

2.  Yes, you should go to your DAV and persue additional benefits if you think you qualify, because you know your health conditions better than anyone else, except, perhaps, your mother or wife.  

3.  Contrary to myth's swirling around, you wont be reduced for applying for an increase.  I have read the reduction regulations at least 20 times, and I can say with certainty THERE IS NO REGULATION stating any thing near, "WHEN A VETERAN APPLIES FOR AN INCREASE, reduce his benefits instead".  

Since you have been P and T for 14 years or so, its gonna be very hard for VA to reduce your benefits.  Very hard.  You get the 5 year, and 10 year protections, unless you have actually improved under ordinary conditions of life, or have gone back to work full time. 

Edited July 1 by broncovet

[hiker79]

broncovet: Thanks for the great information! I appreciate the details you outlined about increases/decreases and also apnea.  I'm sure the social worker meant well but I'm glad I came here to ask, for sure.

[Tbird]

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[pacmanx1]

I agree with Bronco that there is no automatic rating with the VA, with that said if you have sleep apnea service-connected and you use a CPAP/BIPAP Machine, the current rating is 50% but it is not automatic or guaranteed. You are going to have to file a claim and wait for a decision. Since the rating criteria for the use of a CPAP/BIPAP Machine to treat sleep apnea is 50%, the VA normally denies the initial claim and the veteran has to file an appeal.

Really not sure why the social worker suggested you try for the 100% schedular rating because at this point it would not change anything. The criteria for SMC-S is a single 100% rating plus an additional separate and distinct 60% and even if the VA granted your claim for sleep apnea you would still need additional ratings to hit the plus 60% for SMC-S.  You could also meet the SMC-S criteria with a single TDIU rating plus additional separate and distinct 60% rating.

Edited July 1 by pacmanx1

[Rattler]

Hears what I would do. I would file for sleep apnea secondary to Major Depressive Disorder. Unless you can relate it to an in-service event or treatment record. As stated above it could get you an extra 50% that would put you in a scheduler ratting.

"Major depressive disorder (MDD) and obstructive sleep apnea (OSA) are both common conditions that are linked in both directions. According to a 2022 CDC study, people with depression are nearly always associated with symptoms of OSA, such as gasping, snorting, or stopping breathing while sleeping. Other studies have found that people with depression are five times more likely to develop OSA than the general population and that up to 40% of people with depression have OSA. "