What is sleep apnea? Sleep Apnea is a common, potentially serious sleep disorder in which a person’s breathing is repeatedly interrupted, or ceases, during the course of a night’s sleep. These sleep disturbances can occur from tens to hundreds of times per night. The causes of these disturbances may vary depending on which form of the condition you have: obstructive, central, or a mixed form of both.
Obstructive sleep apnea is one of the more common forms which occurs when the upper airway repeatedly becomes blocked throughout the night. This blockage is caused when the soft tissue in the back of the throat relaxes, impairing the airflow. Central sleep apnea occurs when the brain either does not send signals to the muscles that control breathing or those signals are interrupted. The VA refers to mixed sleep apnea is a combination of the obstructive and central forms of the condition.
How Does the VA Rate Sleep Apnea
Sleep apnea is rated under 38 CFR § 4.97, Diagnostic Code 6847. This diagnostic code falls under the Sleep Apnea Syndromes. The VA assigns the following ratings for Veterans based on the severity of their sleep apnea:
- 100 percent: chronic respiratory failure with carbon dioxide retention, the need for a tracheostomy or the enlargement or failure of the right side of the heart due to lung disease. This is the most severe and the highest rating available.
- 50 percent: the Veteran requires the use of a breathing device, such as a CPAP machine.
- 30 percent: the Veteran is experiencing hypersomnolence, or excessive daytime sleepiness, that does not improve with sufficient sleep or even with naps during the day.
- 0 percent: the Veteran’s condition does not produce any symptoms but has a documented sleep disorder. This rating is a non-compensable rating, however, a Veteran may be entitled to other benefits, such as VA health care.
Establishing Service Connection
In order to establish direct service connection for sleep apnea, a Veteran must show that they have a current, diagnosis of sleep apnea, an in-service event or illness/injury, and a medical nexus or link that shows the Veteran’s sleep apnea is related to their in-service event, injury/illness.
A Veteran can also establish service connection for sleep apnea on a secondary basis. This means that a Veteran has an already service-connected disability that caused the Veteran to have sleep apnea. In this case, there must be a medical nexus to link the sleep apnea to their already service-connected disability. Some conditions that can be secondary to sleep apnea may include but are not limited to heart conditions, mental health conditions, and diabetes. If you have a service-connected condition that you believe is causing your sleep apnea, it may be a good idea to start to talk to your doctors about it.
How Does the VA Diagnose Sleep Apnea?
The VA will usually order a sleep study to be performed in order to confirm a diagnosis of sleep apnea. As a part of the VA’s duty to assist Veterans in obtaining evidence to help prove their claim, the VA has a duty to assist Veterans in scheduling the examination for a sleep study. For Veterans who have already been diagnosed with sleep apnea without a sleep study by the VA, the Veteran may have to undergo a sleep study done by the VA in order to confirm the diagnosis for benefit purposes.
Denied for Benefits?
If you have a previous denial for sleep apnea, please give us a call to see how one of our experienced attorneys can help you! Get started here!
We know Veterans can be awarded a 100% rating for their service-connected disabilities. But the VA can also award a Veteran a temporary 100% rating. Let’s take a look at the three types of temporary 100% disability ratings that a Veteran can get.
1. Hospitalization Ratings
A 100% rating is available for periods of hospital treatment for a service-connected disability for more than 21 days. If you are hospitalized for a non-service-connected disability, you can still get assigned a 100% rating if during that hospitalization you were treated for a service-connected disability for more than 21 days. The rating is effective from the first day of the hospitalization and ends the last day of the month that you were discharged from the hospital.
2. Convalescent Ratings
A Veteran is entitled to a temporary 100% rating when a Veteran needs time to convalescence following a hospital discharge or outpatient release.
What does convalescence mean?
Convalescence is the act of regaining or returning to a normal or healthy state after surgical operation or injury.
The three circumstances for convalescence:
- The Veteran has undergone surgery that requires at least one-month convalescence
- The Veteran has undergone surgery that resulted in severe postoperative residuals
- The Veteran has a major joint that has been immobilized by a cast
What do you need to prove convalescence?
You will need medical evidence to establish that you need a convalescence rating. It is enough for your doctor to say that you cannot return to work. You will want to ask your doctor to specify in the discharge report whether convalescence is needed and the length of time that will be needed.
For how long are you entitled to convalescence ratings?
The 100% rating would be effective from the date of hospital admission or outpatient treatment and continue for one to three months from the first day of the month following discharge or release. Further extensions can be granted for up to six months if approved by the VA. The temporary 100% rating can last for up to one year.
3. Prestabilization Ratings
A Veteran may be assigned a 100% rating if:
- They suffer from an unstabilized condition,
- That condition was incurred in service,
- The condition resulted in severe disability, and
- That condition makes substantially gainful employment not feasible or advisable
Some examples might be:
- If you had a car accident in service and suffered a head injury, and have residuals from that head injury
- If you were in combat during service and suffered gunshot wounds and now have residuals from those wounds
If you are entitled to a 100% rating for these conditions or individual unemployability, then you will not be assigned a prestabilization rating. Prestabilization ratings are meant to be for the immediate period following discharge from service and continue without reduction for a 12-month period after discharge. The VA is supposed to examine the Veteran between 6 and 12 months after discharge. At that point, they can either change the rating to a regular 100% rating or keep the prestabilization rating. The VA may not reduce a Veteran’s rating until after the 12 months. So if you are receiving a 100% prestabilization rating, the VA can assign you a regular 100% schedular rating, or TDIU, but they cannot lower your rating.
VA updates the disability rating schedule for infectious diseases, immune disorders and nutritional deficiencies
As of Aug. 11, the U.S. Department of Veterans Affairs (VA) updated portions of the VA Schedule for Rating Disabilities (VASRD, or Rating Schedule) that evaluate infectious diseases, immune disorders and nutritional deficiencies.
The collection of federal regulations used by the Veterans Benefits Administration helps claims processors evaluate the severity of disabilities and assign disability ratings.
“VA is in the process of updating all 15 body systems of the VASRD to more accurately reflect modern medicine and provide Veterans with clearer rating decisions,” said VA Secretary Robert Wilkie. “By updating the rating schedule, Veterans receive decisions based on the most current medical knowledge of their condition.”
The complete list of updates to the rating schedule is available online. Claims pending prior to Aug. 11, will be considered under both the old and new rating criteria, and whichever criteria is more favorable to a Veteran will be applied. Claims filed on or after Aug. 11, will be rated under the new rating schedule.
Updating the rating schedule for conditions related to infectious diseases, immune disorders and nutritional deficiencies, enables VA claims processors to make more consistent decisions with greater ease and ensure Veterans understand these decisions. VA remains committed to improving its service to Veterans continuously and staying at the forefront of modern medicine as it has for decades.
Since Sept. 2017, VA has updated the schedules for dental and oral conditions, conditions related to the endocrine system, gynecological conditions and disorders of the breast, the general rating formula for diseases of the eye, skin conditions and the hematologic and lymphatic systems.
Veterans who have a legacy appeal pending with VA have an opportunity to opt in to the Appeals Modernization program’s decision review program. The new process provides more options and a faster decision without changing their date of claim.
The Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act) went into effect February 19, 2019. By joining the modernized process, Veterans and claimants will receive more choice and control over their disagreements, and more timely decisions.
The new review process was validated during the Rapid Appeals Modernization Program (RAMP) pilot, which began in November 2017. As of August 1, nearly 84,000 claims have been completed and more than $410 million in retroactive benefits have been paid to beneficiaries.
To opt in to the modernized process, you must have a pending legacy appeal and have received a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) within the previous 60 days. By completing the appropriate form and submitting it to VA within 60 days of receipt of an SOC or SSOC, your pending legacy appeal will be moved from the legacy appeals process into the modernized decision review process.
If you choose to enter the modernized decision review system, you are not “starting over.” In fact, since a primary benefit of the new system is more timely decisions, you will most likely receive your decision within a few short months (depending on your lane selection). Regardless of the lane selected, effective dates for any granted benefits are protected.
There are three options, or lanes, available under the modernized process:
- Submit a VA Form 20-0995, Decision Review Request: Supplemental Claim. Check “OPT-IN from SOC/SSOC” box under Part II, 13 (see below).
- This lane requires the submission of new and relevant evidence.
- VBA will assist you in obtaining evidence for your claim and provides a review based on newly-received evidence.
- VBA’s goal for completing Supplemental Claims is an average of 125 days.
- Submit a VA Form 20-0996, Decision Review Request: Higher-Level Review. Check “OPT-IN from SOC/SSOC” box under Part III, 15 (see below).
- No new evidence is allowed in this lane. This lane provides a review by a senior, more experienced adjudicator to determine whether the previous decision was correctly decided or should be decided in a different way.
- You have the option to have an informal conference over the telephone with the reviewer to point out the error in the previous decision.
- VBA’s goal for completing Higher-Level Reviews is an average of 125 days.
Appeal to the Board of Veterans’ Appeals:
- Submit a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Check “Opt In from SOC/SSOC” box under Part III, 12 (see below).
- This lane allows you to appeal directly to the Board of Veterans’ Appeals (Board).
- You may choose one of three Board dockets: (1) Direct Docket: no new evidence and no hearing; 2) Evidence Docket: new evidence but no hearing; or 3) Hearing Docket: hearing with or without new evidence).
- The Board’s goal for completing appeals on the Direct Docket is 365 days. Appeals on the other two dockets may take longer than 365 days.
Reexaminations- What, When, Why, How
You have been awarded service-connected compensation for your disability. But the VA wants to reexamine you. Why? What does this mean? What do you do? This situation often causes concern for Veterans, leaving them wondering why are they being reexamined and what does this mean for their benefits.
Why and When Are Reexaminations Required by VA?
There are certain circumstances in which the VA may require a Veteran who is already receiving service-connected compensation benefits to be reexamined by a VA physician:
- When they need to verify the continued existence of a disability
- When they need to verify the current severity of a disability
- When there is evidence to indicate a change in the disability since the last examination
- When the disability is likely to improve
- When the VA has the duty to assist the Veteran in developing the claim
After the VA awards benefits for a disability, they usually schedule a future exam if they believe that a future exam will be needed to establish that the Veteran is still entitled to that award. The reexamination is scheduled so that the VA can assign an evaluation that accurately reflects the Veteran’s level of disability. After the RO reviews the exam report, the rating could be increased, reduced, or continued at the same level. Once they determine a future examination is needed, the exam will usually be scheduled five years from the date of the rating decision.
How Do I Avoid Being Scheduled for a Future VA Exam?
The VA will generally not schedule a reexamination if:
- The disability is static
- Symptoms have persisted without material improvement for five or more years
- The disability is a disease that is permanent and not likely to improve
- The Veteran is over 55 years old
- The rating is a minimum rating, or
- The combined disability evaluation would not be affected even if a future exam resulted in a reduced evaluation
What Happens if I Don’t Show Up to My VA Reexamination?
If you fail to report for a reexamination without good cause or attempting to reschedule, they may have your benefits reduced or discontinued. If you fail to report for the reexamination, the VA is required to send you a predetermination notice. That notice will let you know that you have 60 days to notify the VA that you are willing to report for the scheduled examination or present evidence that the disability should not be discontinued or reduced. If you do not notify the VA, your benefits will be reduced or canceled. If the VA scheduled an examination for a Veteran’s claim for increase and the Veteran doesn’t attend without good cause, then the VA may deny the claim without having to consider any evidence that shows a higher evaluation.
If, however, you are not notified beforehand of the reexamination, and the VA takes adverse action against you, then the VA has committed an error and you should not be held responsible for not showing up.
What Happens if I Can’t Show up?
When the VA schedules a reexamination, you must report for the examination. But if you have good cause for not reporting for the exam, the VA will reschedule the examination. If you have a reasonable excuse for failure to report for a scheduled exam, you should notify the VA as soon as possible. They will determine if your reason is good cause on a case by case basis. If you are found to have good cause, the VA will take no action against you. If the VA finds you failed to report for the examination without good cause and you agree to report for a second examination but then don’t report, the VA can take immediate action and reduce or discontinue your benefits. If you make no effort to explain to the VA why you didn’t report for the exam, the VA will promptly reduce or terminate your benefits.
Keep in mind that a doctor-patient relationship does not exist in these examinations. While your own doctor may be sympathetic to you, these doctors will likely not be. They are not treating you; they are reviewing the extent of your disabilities.
If I Apply for Unemployability, Am I Still Able To Work?
One of the most common questions asked is, “If I apply for Individual Unemployability, am I still able to work?” Although there isn’t a concrete answer to that question, let’s focus on the VA’s choice of words: “substantially gainful employment”. Individual Unemployability can be filed as a supplementary claim for your service-connected disabilities if those disabilities prevent you from securing and maintaining substantially gainful employment. By definition, the VA will award Individual Unemployability, or payment at the 100% rate, to a working Veteran who can prove that their service-connected disability(s) prevents them from maintaining substantial employment; in other words, one must be earning under the poverty level to qualify for these benefits if they are currently employed.
Another gray area involving Individual Unemployability that you may have heard before is the term sheltered employment. Sheltered employment refers to accommodations that an employer makes to a Veteran to assist them in maintaining their occupation while making special arrangements that are not typically offered to other employees.
Is My Employment Sheltered?
As previously stated, sheltered employment is another variable to look at when deciding whether you may qualify for Individual Unemployability. When looking at your employment, first think about how your service-connected disabilities affect you, and then look at how you cope with them while you’re at work.
Do you set your own hours? If you are able to lie in bed until noon because you woke up with a migraine and then go into work later, that is considered sheltered employment. Do you work in the warehouse away from customers because your PTSD causes angry outbursts? That is also sheltered employment. Some other examples include self-employment, allowing multiple breaks throughout the day for pain management, the ability to go home early when feeling overwhelmed with anxiety, replacing physical labor with a sedentary position such as inspections or office work, or even having an employer create a unique position just for you. Ask yourself, “If I was no longer working here, would my current position be filled?” Many jobs create unique circumstances that one may not even recognize as an accommodation because they are so used to working under those relaxed conditions. That is why it is important to closely examine how you find relief from your service-connected disabilities while you’re at work, and then look to see if anyone else is receiving the same privilege. Do you feel you’d be able to maintain employment in the competitive job market? If you’re receiving special accommodations for your disabilities, chances are other employers would not be so generous.
What Do I Need to Do?
Sheltered employment can be defined as having fewer restrictions in the workplace. You are typically not working under as high of expectations as other employees. If you are planning on claiming Individual Unemployability while you are currently employed, it will be important to provide evidence concerning the accommodations that are being made for you; the VA will not pay you the 100% rate if they feel you could work in any kind of job setting. Statements from coworkers and employers describing the sheltered conditions would be very beneficial. It is not easy to obtain entitlement to Individual Unemployability while continuing to work, so be prepared to substantiate your claim with proof that you would be unable to maintain your job if not for the lower set of standards your employers provided for your service-connected disabilities. Remember, you will still need to file the VA Form 21-8940; Veteran’s Application for Increased Compensation Based on Unemployability to start your claim.
GI Bill students enrolled in courses that combine distance and in-class learning will soon get paid a full housing allowance thanks to a change by the Department of Veterans Affairs.
The change impacts "hybrid courses," which the VA defines as any course that combines both classroom training and distance learning, often conducted online.
Starting Aug. 15, hybrid courses will be considered residence training for GI Bill purposes, triggering the Monthly Housing Allowance (MHA) to be paid accordingly. Until now, a student enrolled in hybrid classes was eligible for only half the national average MHA, a much lower payout than the full residence rate in almost all cases, unless their class met these stringent requirements:
- The course must have had at least one classroom session every two weeks.
- The total amount of classroom sessions for a term must have been equal to at least the credit hours multiplied by the weeks in the academic session. For example: A three-credit hour class meeting over a 12-week quarter was required to meet in-classroom for at least 36 hours over the entire quarter.
Starting Aug. 15, however, all GI Bill recipients taking hybrid courses using the Post-9/11 GI Bill will be paid the MHA amount for the location where they take the majority of their classroom training.
In the past, to receive the MHA rate for the location of their training, students would have to be enrolled:
- Solely in classroom training;
- In a combination of classroom and online training;
- In a hybrid course that met the rules above.
Students who aren't enrolled as a greater than half-time student do not receive any housing allowance, no matter what the situation or location. That is not changing.
The change to hybrid class housing payments is not retroactive; it applies only to classes that begin on or after Aug. 15, 2019.
Keep Up With Your Education Benefits
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Effective August 11, 2019, there is a new rating schedule for infectious diseases, immune disorders and nutritional deficiencies. The collection of federal regulations used by Veterans Benefits Administration helps claims processors evaluate the severity of disabilities and assign disability ratings. Since September 2017, VA has updated the rating schedules for Dental and Oral Conditions, conditions related to the Endocrine system, Gynecological Conditions and Disorders of the Breast and the General Rating Formula for Diseases of the Eye, Skin conditions, and the Hematologic and Lymphatic Systems. VA will continue updating the remainder of the VA Schedule for Rating Disabilities (VASRD)—affecting 15 total body systems—over the next several months.
The complete list of updates to the rating schedule for infectious diseases, immune disorders and nutritional deficiencies is now available online. Claims pending prior to August 11, 2019, will be considered under both the old and new rating criteria, and whichever criteria is more favorable to a Veteran will be applied. Claims filed on or after August 11 will be rated under the new rating schedule.
VA is updating the entire VASRD for the first time since 1945. VA remains committed to staying at the forefront of modern medicine to provide the best service to Veterans and their families.
Deputy Secretary of Defense David L. Norquist has given the green light to consolidation of military commissaries and exchanges — pending changes in law that would allow that consolidation.
Norquist’s Aug. 19 memo marked his official agreement with the recommendation to consolidate the Defense Commissary Agency, the Army and Air Force Exchange Service, the Navy Exchange Service Command, and the Marine Corps Exchange into one entity. That merger was recommended by DoD’s chief management officer, following a business case analysis.
“The department’s intent is to improve community services for our service members and families, improve support to commanders, and fulfill its fiduciary responsibility” concerning taxpayer dollars and morale, welfare and recreation funds, stated Norquist.
But advocates, long concerned that this consolidation may pose a threat to the stores’ future, are concerned that DoD is moving too quickly.
“This is a bold document,” said Kelly Hruska, government relations director for the National Military Family Association. “We are concerned that DoD is moving forward much too quickly with their recommendations. We don’t think they’re considering the risks to the defense resale system as a whole.”
In March, NMFA was among a group of 27 groups in The Military Coalition, who wrote a letter to House and Senate armed services committee leaders expressing their concerns that the consolidation will cost more than anticipated and fail to result in projected savings in operational costs. If those predictions are accurate, they said, the defense resale system may be unable to provide the low-cost groceries and support for morale, welfare and recreation programs that service members, their families and survivors rely on.
Current law prohibits consolidation of commissaries and exchanges. Norquist lays out actions that can be taken to prepare for the merger in the event the law is changed — such as determining whether any legal mechanisms currently exist in DoD for financing a consolidated resale enterprise.
The move comes as the House and Senate armed services committees are in the midst of conference about the fiscal 2020 National Defense Authorization Act. A provision in the House version of the bill would delay any military store consolidation until the Government Accountability Office has conducted a review of DoD’s business case analysis. That GAO report would include information such as implications for the financial viability of the military exchanges and commissaries if they are consolidated; and the ability of exchanges and commissaries to provide earnings to support morale, welfare and recreation programs under a consolidated model. It also calls for review of the DoD’s analysis related to pricing, sales assumptions, accuracy of methods that measure customer savings levels, timetable for consolidation, and budget and oversight implications.
“I have more questions than I have answers,” said Hruska. “We think DoD should hold off on consolidation until a GAO study is complete.”
There have been 12 studies between 1989 and 2015 that studied the idea of consolidating all the military exchanges and the commissary agency, but this is the first time DoD officials have had agreement from all the military services about consolidation. Navy and Marine Corps officials didn’t initially agree with the concept, and cited disagreements with the business case analysis, but they eventually acquiesced. House lawmakers also asked GAO to look at the extent to which DoD addressed the concerns of the service secretaries and service chiefs about consolidation.
The services commissary stores were consolidated into one agency, the Defense Commissary Agency, on Oct. 1, 1991.
A DoD task force which began its work a year ago determined that “the benefits from consolidation outweigh the expected costs of consolidation.” The task force projected cumulative savings of $700 million to $1.3 billion over the first five years, with $400 million to $700 million in recurring annual net savings afterward. The cost of implementing the consolidation in the first year is estimated at $75 million, doubling in each of the three years after that.
The report noted substantial duplication in management and back-office functions, redundant supply distribution chains, and highly overlapping product lines, particularly among the exchanges.
Consolidation could happen without any change to the customer’s experience, and no store closings would be anticipated, the DoD task force reported.
Over the years, defense officials have proposed budget cuts to commissaries, which are currently operated with about $1.4 billion a year in taxpayer dollars to allow the stores to sell groceries at a discount. Concerns have been raised about where the savings will be going in this consolidation — and whether the money that’s been used to fund morale, welfare and recreation programs would be used to underwrite the cost of commissaries.
By law, as commissaries have been undergoing reforms, they must still be able to maintain the savings level baseline, determined at the global overall average in 2016 of 23.65 percent, compared to local commercial grocery prices. If the savings decline, DoD will use taxpayer dollars to shore up the benefit.
If you are a reservist, young adult or transitioning service member enrolled in Tricare or a transition health insurance plan, you will probably soon be paying more for your health insurance. And an enrollment change could impact how much some users must pay up front.
Tricare just released the 2020 rates for the Tricare Reserve Select (TRS) and Tricare Retired Reserve (TRR) programs, as well as for the Tricare Young Adult and Continued Health Care Benefit Programs. Like almost everything else, the prices will mainly be increasing.
Reservists enrolled in the Tricare Reserve Select program will see their monthly payments increase from $42.83 to $44.17 for single coverage and from $218.01 to $228.27 for family coverage.
Retired reservists who haven't turned 60 and are covered under the Tricare Retired Reserve program will benefit from a rate decrease in 2020. The monthly premium for a single retiree will decrease from $451.51 to $444.37, and those with family coverage will see a decrease from $1,083.40 to $1,066.26.
College-age dependents enrolled in the Tricare Young Adult program will see an increase in their monthly premiums; however, the amounts vary depending on which option they are covered under. For those using Tricare Young Adult Select, the monthly payment will go from $214 to $228, and those using Tricare Young Adult Prime will see the monthly payment increase from $358 to $376.
Recently discharged members with temporary health insurance under the Continued Health Care Benefit Program (CHCBP) will see their premiums increase by the largest amount. Those who have single coverage will be hit with a premium increase from $484.33 to $517.67 each month, and those electing family coverage will pay an additional $75.67 each month, increasing their premiums from $1,091 to $1,166.67.
While these rates may seem high, they pale in comparison to what civilians pay for health insurance. According to the National Conference of State Legislatures, the average monthly health insurance premium for single coverage in 2018 was $575; for family coverage, it was $1,634.
Tricare Enrollment Payment Changes
Meanwhile, Tricare officials recently changed the amount those newly enrolling in Tricare Reserve Select or Retired Reserve are required to pay. In the past, those enrolling in the programs were required to pay two months of premiums in advance, regardless of when in the month they enrolled. For retiree families, that meant dishing out about $2,200 at once, while others owed $440.
Now, Tricare has removed that requirement. Instead, it has allowed its regional contractors to determine whether they want to collect premiums up front.
"Depending on the beneficiary's method of payment, and the day of the month the request is made, the regional contractor will determine how long it will take to set up and process automated monthly payments and how much advance payment is required," Tricare officials said in a statement. "We believe this will improve TRS customer satisfaction and ease their transition from active-duty status."