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Tag: VA Disability IU

Can I get VA 100% for Sleep Apnea?

Service Connection

In order for the VA to assign a 100% rating for Sleep Apnea, the VA must first determine that the condition is related to service.

Generally, VA will grant service connection if the following are met:

  1. Proof of a current diagnosis,
  2. Proof of an in-service event, disease or injury, and
  3. Proof of a medical nexus between the first 2 elements.

VA Schedule of Rating

After VA grants service connection, it must determine the correct rating.  To do so, VA consults the Schedule of Ratings.  The ratings should reflect how much that specific disability impairs your ability to work.  In order to get a 100% rating for sleep apnea, it must be so severe that it prevents gainful employment.

Requirements Specific to Sleep Apnea

The Schedule of Ratings breaks down disabilities into different categories. Each category contains groups of medical problems.  For example, Sleep Apnea is found in the Respiratory System category.  Each group contains a list of disabilities, and each disability has its own diagnostic code.  In turn, each diagnostic code specifies the symptoms required for various ratings.  For example, the 6847 code applies to Sleep Apnea.  See 38 C.F.R. § 4.97.  A 100% VA rating for Sleep Apnea requires:

  1. Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or
  2. The condition requires tracheostomy.

Chronic Respiratory Failure

Chronic respiratory failure usually happens when the airways that carry air to your lungs become narrow and damaged.  In other words, less oxygen gets in and less carbon dioxide goes out.  A tracheostomy is a surgically made hole in the front of your neck where a breathing tube is connected to your windpipe to help you breathe.  Naturally, a veteran with these extreme symptoms deserves a 100% VA rating for Sleep Apnea.

Sleep Apnea Medical Evidence

Only medical evidence can satisfy these requirements.  It is not enough for the veteran to say “I cannot work because of my sleep apnea.”  Fortunately, VA provides rating tools such as Disability Benefits Questionnaires (“DBQs”) on their website.  Specifically, VA provides a Sleep Apnea DBQ that focuses on the symptoms described in the Schedule.  Veterans seeking a higher rating for sleep apnea should have their doctors complete the DBQ. The VA will likely grant the rating if the DBQ includes the criteria for a 100% rating for Sleep Apnea.

Disability Benefits Questionnaire

A doctor who treats the disability in question should fill out a Disability Benefits Questionnaire.  For example, an orthopedic specialist who is treating a foot condition should not complete a DBQ for PTSD.

Watch out for Pyramiding

When seeking a 100% rating for Sleep Apnea, one must consider every rule and exception related to VA ratings.  Under the VA rating system, a veteran should be compensated for each service-connected disability.  However, there is one big exception.  VA cannot pay a veteran more than once for the same disability or same manifestation.  For example, Asthma and Sleep Apnea have nearly identical manifestations.  They both involve impairment of the airways, they share symptoms such as daytime fatigue, and they are under the same category in the Schedule of Ratings.  A veteran who is service connected for both will only receive a rating for one of them.  In that circumstance, VA must assign the higher of the 2 possible ratings.

Disability Help Group Case Study Sleep Apnea

The anti-pyramiding rule recently affected a DHG client.  He is a 64 year-old veteran of the Army who filed a claim for asthma and sleep apnea.  VA denied the sleep apnea claim, but granted the asthma claim at 30%.  After a successful appeal, VA granted 60% for his asthma.  Furthermore, the VA conceded that the criteria for sleep apnea was met and granted a 50% service-connected disability.  The VA, however, could not grant the additional 50% rating because of the anti-pyramiding rule.  Instead, VA awarded 60% for his “asthma with sleep apnea.”

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Can I Work and Get TDIU?

Can I Work and Get TDIU? Many veterans are unable to support themselves because of service-connected disabilities.  Congress decided to take care of these veterans with a special benefit called TDIU.  Also known as Unemployability, TDIU pays the same monthly amount as a 100% disability rating.  Under 2019 rates, VA will pay TDIU recipients a minimum of $3,057.13 per month tax free.  The whole point of TDIU is to compensate veterans who cannot maintain a full-time job due to service-connected disabilities.  In most cases, VA will only award TDIU if the service-connected disabilities combine to at least 70%.

TDIU v Unemployed

The terms “Unemployability” and “Unemployed” look and sound alike, many veterans assume that cannot work to get TDIU.  This is a common misconception.

Amount You Can Earn

VA will grant TDIU to a veteran that works if the employment is considered “marginal.”  38 C.F.R. § 4.16(a).  VA considers employment “marginal” if the veteran earns LESS than the federal poverty threshold for one person (in 2018, $12,784 per the U.S. Census Bureau).

Sheltered Work Environment

Regardless of your income, you may still be eligible for TDIU if you work in a sheltered environment.  Sheltered work environments include self-employment or a family business.  If you are your own boss, you can probably take as much time off as your medical conditions require.  Similarly, a family business is probably more accommodating to a veteran’s disabilities than the average workplace.  Also, your family or yourself would likely pay at a rate higher than you could earn at another job.

Example: Difficult TDIU Work Case

Take the example of a veteran with a 70% rating for PTSD who works as a Financial Advisor.  With the help of his doctors, he is able to manage his PTSD symptoms while earning over $100,000 a year.  Because he earns above the poverty threshold despite his PTSD, he is not a good candidate for TDIU.

Example: Good TDIU Work Case

A 60 year-old veteran owns a roofing company.  He has an 80% overall rating for PTSD, diabetes, and diabetic neuropathy.  He lost his last 2 jobs because his PTSD led to angry confrontations with customers and his bosses.  This is why he started the roofing business.  His PTSD impairs his ability to maintain relationships with friends, clients, and workers.  As his diabetes worsened over the years, he hired more workers to handle the physical labor. Over the past 5 years, he hired and fired over 20 workers.  During the same period, another 15 workers resigned because of his offensive outbursts.  This veteran is eligible for TDIU because he is employed in a sheltered environment.

Are you entitled to work and get TDIU based on marginal employment?  Call the experts at Disability Help Group, 1-800-800-3332. Or, click here to request a free evaluation.

If you would like to read more about the regulation on TDIU, click on this link, 38 C.F.R. § 4.16(a).

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How Can I Get TDIU?

What Is TDIU?

Many veterans are unable to earn a living because of service-connected disabilities.  Congress created a special benefit called TDIU to help these veterans live comfortably, also known as Unemployability. TDIU pays the same monthly amount as a 100% disability rating.  Under 2019 rates, VA will pay TDIU recipients a minimum of $3,057.13 per month tax free.  VA will pay an additional amount for each of the veteran’s dependents.

Ways to Get TDIU

A veteran cannot simply state to the VA, “I cannot work due to disabilities related to service.”

First, cannot earn a living

In order to receive TDIU, a veteran must first show they cannot earn a living because of service-connected disabilities.  VA will grant TDIU to an employed veteran if the employment is considered marginal. They do not have to be unemployed. VA considers employment to be marginal if the veteran earns LESS than the federal poverty threshold for one person (in 2018, $12,784.00 per the U.S. Census Bureau).

Second, must meet percentage requirements

If the veteran has only one service-connected disability, it must be rated 60% or higher to receive TDIU.  If the veteran has more than one service-connected disability, then at least one must be rated 40% or higher.  Also, there must be “sufficient additional disability to bring the combined rating” to 70% or higher.  The regulation specifies five circumstances in which multiple disabilities “will be considered as one disability”. 

Will You Get TDIU?

Disability Help Group has won TDIU for hundreds of veterans.  Here are a few examples:

  • A divorced, 70-year old Vietnam-era veteran had a 20% rating for diabetes, 20% each for diabetic neuropathy in both legs, and 10% each for diabetic neuropathy in both arms.  These combined to a 60% rating.  As a result of these conditions, he had not worked in 3 years.  Because the disabilities all arose from exposure to Agent Orange, we argued that VA should consider them as one service-connected disability and grant TDIU.  VA agreed and granted TDIU.  His monthly payment changed from $1,062.67 to $3,057.13.
  • A married, 35-year old Gulf War veteran asked us to help with an appeal for PTSD.  She did not have a VA rating and she just lost her job.  We submitted evidence to VA to win the PTSD claim.   However, we noticed that she lost her last 2 jobs because of her PTSD.  She had daily panic attacks, thoughts of suicide, and was hospitalized for PTSD four times in the last year.  We argued that VA should grant her PTSD claim at a 70% rating, and then grant TDIU.  VA agreed.  Her monthly payment changed from $0 to $3,227.58.
  • A single, 50-year old veteran had a 60% rating for Meniere’s disease.  His symptoms prevented him from working a full-time job, but he worked as an Uber driver.  Because he earned less than $12,784.00 per year with Uber, VA granted TDIU.  He continued to receive his income from Uber, but his monthly VA payment changed from $1,062.67 to $3,057.13.

If you are interested in learning more about TDIU you can read the regulation, 38 C.F.R. § 4.16. Click here for a free case review.

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