New Claim after Separation

Bigsink

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Good afternoon,

I've been looking into opening a new claim, but want to get some insight before doing so. I am rated at 100%. My primary care team at the VA wanted to get me tested for sleep apnea. I got a CPAP. Would filing a new claim jeopardize my current VA rating? I don't want to get over 100% and receive "unemployable," but I do want to add it to my disabilities since I am within a year of separation from the Army. That way, it is service connected in case of any future health issues.
 
Good afternoon,

I've been looking into opening a new claim, but want to get some insight before doing so. I am rated at 100%. My primary care team at the VA wanted to get me tested for sleep apnea. I got a CPAP. Would filing a new claim jeopardize my current VA rating? I don't want to get over 100% and receive "unemployable," but I do want to add it to my disabilities since I am within a year of separation from the Army. That way, it is service connected in case of any future health issues.
Hmm, did you previously have a sleep study done prior to separating from the Army? Was the CPAP machine issued when you were still a member of the Army?

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer!"

Best Wishes!
 
Hmm, did you previously have a sleep study done prior to separating from the Army? Was the CPAP machine issued when you were still a member of the Army?

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer!"

Best Wishes!
My sleep study was done after separation.
 
My sleep study was done after separation.
Okay, then it's indeed highly imperative to consider submitting a new DoVA disability claim at this point in time since you are within one year of separating from the military.

From my experiences, submitting new DoVA disability claims definitely affected my overall DoVA disability rating (e.g., 100% to 100% P&T to SMC) albeit the DoVA decision letters were ultimately favorable since I am not capable of obtaining/maintaining any employment due to physical impairment conditions and behavioral health impairment conditions.

To that extent, it would seem that the DoVA rating decisions would vary on an individual case-by-case basis as to how the military disabled veteran's overall medical conditions affect their ability to pursue, obtain, and maintain employment. That said in my opinion, it's a personal judgement call whether to submit new DoVA disability claims since you are fully aware of your current medical conditions and their limitations. Take care!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer!"

Best Wishes!
 
Re: " I am rated at 100%. My primary care team at the VA wanted to get me tested for sleep apnea. I got a CPAP. Would filing a new claim jeopardize my current VA rating? I don't want to get over 100% and receive "unemployable," ..."

1. Would filing a new claim jeopardize...? Comment: Probably not; however, anytime a veteran files a claim the VA could look at other issues previously rated. It is somewhat uncommon, but it does occur. I have filed several claims over the past 27 years and none of my previous ratings were changed except those for which I sought an increase.

2. I don't want to get over 100% and receive "unemployable"... Comments: This is somewhat confusing.

a. Individual Unemployability (IU) is a part of VA's disability compensation program that allows VA to pay certain Veterans disability compensation at the 100% rate, even though VA has not rated their service-connected disabilities at the total level.

b. The ratings for some veterans are based on behavioral health impairment conditions, which preclude maintaining employment, as mentioned in Warrior644's excellent post.

c. There is no rating higher than 100%; that is the maximum. There are Special Monthly Compensation (SMC) rates that add (or replace) to the amount of the 100% rate, but they are not in percentage form. I receive SMC-K and SMC-S. Note: If you have a 100% rating and then another 60% rating (remember, 100% is the ceiling), you're eligible for the housebound benefit (SMC-S) whether or not you're actually unable to leave your house.

3. Having a 100% schedular rating (i.e., not IU) does not necessarily mean you cannot work. Of course if the rating is based on behavioral health impairment conditions, which preclude maintaining employment, that might be a factor as far as the VA is concerned.

Good luck,
Ron
 
As always, @RonG and @Warrior664 have some great insight. As they noted, there's no downside to asking for an increased rating, though there might not be much of an upside either.

To piggyback off of what they said, there's one important note to consider. The "one-year-past-discharge" rule with VA ratings applies to your effective date, not service connection.

Your effective date is the date that the VA starts paying you for a condition. After you get off Active Duty, anything that you file for within a year gets back-dated to the day you left AD. Even if you wait 11.5 months to file, you still get a check for all of that time back to the day after your discharge. That's the benefit of filing within a year.

However, there is no rule that says that anything you ask for within that year will be granted. You will still need to prove service connection, meaning that your time on Active Duty caused or aggravated your sleep apnea. It's best to have a sleep study from Active Duty showing a diagnosis of sleep apnea - then you're a shoe in. But without that, you'll need something else to prove to the VA that your condition was incurred or aggravated while you were entitled to basic pay.

There are some conditions that you don't need to go through all those hoops for. They're listed in 38 CFR 3.309(a) (https://www.law.cornell.edu/cfr/text/38/3.309). These conditions are automatically service-connected if they show up within a year of you leaving Active Duty, often because sound medical principles dictate that by the time you're showing symptoms, the disease is at least a year old. The list includes things like ALS and multiple sclerosis. However, you'll note that sleep apnea isn't on that list.

There are ways to strengthen a claim for service connection. The most common one is to get a letter from your doctor saying that, based on his review of your clinical history and your test results, he thinks it is more likely than not that the condition was incurred or aggravated during service.

Best of luck with your claim! I agree with the above commenters - it's worth it to try and get the extra 50% even if it's not going to add to your paycheck each month directly.
 
[selected remarks]
As always, @RonG and @Warrior664 have some great insight.

Your effective date is the date that the VA starts paying you for a condition. After you get off Active Duty, anything that you file for within a year gets back-dated to the day you left AD. Even if you wait 11.5 months to file, you still get a check for all of that time back to the day after your discharge. That's the benefit of filing within a year.

Good information provided by Matt.

One area for clarification:

Effective Date: A veteran does not receive retroactive payment to the effective date. VA compensation begins to accrue the first day of the month following the month having the effective date...even if the effective date is on the first of a month.

The "Month Following Law"

Ref: https://www.law.cornell.edu/uscode/text/38/5111

"... payment of monetary benefits based on an award or an increased award of compensation, dependency and indemnity compensation, or pension may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective as provided under section 5110 of this title or such other provision of law."
---
Some examples:
1. Regular retirements begin on the first day of a certain month; the last day of active duty is the last day of the month preceding. I entered into a retired status 1 Aug 91. My last day of active duty was 31 Jul 91. The earliest possible effective date for a VA award in my case would have been 1 Aug 91. That award would have resulted in the first accrual of VA compensation for 1-30 Sep 91. No VA comp entitlement for 1-31 Aug 91.
2. SGT Doe receives a CH 61 retirement on 28 Jul 91. His last day of active duty was 27 Jul 91. Same rules as item one, but due to the different dates, his first accrual of VA compensation would be for 1-31 Aug 91 if his effective date had been 28 Jul 91.

Ron
 
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