How Does VA Rate Sleep Apnea?
What is Sleep Apnea?
Sleep apnea is a potentially serious sleep disorder in which a person’s breathing is repeatedly interrupted throughout the night. There are three main types:
- Obstructive – the most common form of sleep apnea, occurs when the throat muscles intermittently relax and block airways during sleep.
- Central – occurs when the brain doesn’t send proper signals to the muscles that control breathing.
- Complex (Mixed) – occurs when someone has both obstructive and central sleep apnea.
The signs and symptoms of these three types of sleep apnea tend to overlap, sometimes making it difficult to determine which type a person has. The most common symptoms include:
- Loud snoring
- Gasping for air during sleep
- Waking with a dry mouth
- Morning headaches
- Hypersomnolence (i.e., excessive daytime sleepiness)
- Difficulty concentrating
For mild cases, doctors may suggest lifestyle changes such as losing weight or quitting smoking, if applicable. In more serious cases, doctors may prescribe the use of a continuous positive airway pressure (CPAP) machine.
A CPAP machine delivers air pressure through a mask while a person sleeps. The air pressure is somewhat greater than that of the surrounding air, allowing upper airway passages to remain open, thus preventing apnea and snoring.
How Does VA Diagnose Sleep Apnea?
The Department of Veterans Affairs (VA) requires that a sleep study be conducted before confirming a sleep apnea diagnosis. Even if a medical professional has previously diagnosed a veteran with sleep apnea, VA will not consider this sufficient evidence without a sleep study.
Veterans who have already been granted VA disability for sleep apnea based on their service connection but did not undergo a sleep study will likely be required to undergo one to maintain their benefits.
Proving Service Connection for Sleep Apnea VA Disability Benefits
Veterans suffering from sleep apnea are only eligible for VA disability compensation if their sleep apnea is service connected. A service-connected condition is one that resulted from an in-service illness, injury, or event. This connection to service can be direct, secondary, or presumptive.
Direct Service Connection
To prove service connection for sleep apnea on a direct basis, veterans must show evidence of the following:
- A current diagnosis of sleep apnea, as confirmed by a sleep study;
- An in-service event, injury, or illness; and
- A medical nexus, or link, between their sleep apnea and the in-service event, injury, or illness.
Secondary Service Connection
Veterans may also be able to establish service connection for sleep apnea on a secondary basis. Establishing a secondary service connection involves proving that your sleep apnea is a secondary or residual effect of a service-connected condition. To prove secondary service connection, you must provide a medical nexus opinion linking your current secondary condition to your already service-connected disability.
Examples of service-connected conditions that may lead to sleep apnea include chronic rhinitis, asthma, a deviated septum, or diabetes mellitus type 2. Current research also suggests that post-traumatic stress disorder (PTSD) can aggravate sleep apnea. If you are service connected for PTSD and later develop sleep apnea, you may be able to establish secondary service connection.
Additionally, VA issued an opinion from its Office of General Counsel stating that while veterans cannot receive disability benefits for obesity, it can be used as an intermediary step. For example, say a veteran has a service-connected orthopedic condition preventing them from exercising and thereby causing weight gain (i.e., obesity). Subsequently, the veteran develops sleep apnea due to their obesity. In this case, while there is not a direct connection between the service-connected orthopedic condition and sleep apnea, they are linked together by obesity. Since the service-connected orthopedic condition caused obesity that then caused the sleep disorder, VA should grant service connection for sleep apnea on a secondary basis.
Presumptive Service Connection
Sleep apnea is not considered a presumptive condition for veterans exposed to Agent Orange or ionized radiation; however, veterans of the Persian Gulf War may be entitled to presumptive service connection for their sleep apnea. Under VA regulation 38 CFR § 3.317 for Persian Gulf War veterans, sleep apnea may fall under “sleep disturbances” in the category “Signs and Symptoms of Undiagnosed Illness or Medically Unexplained Chronic Multisymptom Illnesses.”
Sleep Apnea VA Ratings
Sleep apnea is rated under 38 CFR § 4.97, diagnostic code 6847 – Sleep Apnea Syndromes (Obstructive, Central, Mixed). Veterans are assigned a 0, 30, 50, or 100 percent sleep apnea VA rating based on the severity of their condition. The current VA disability rating criteria for sleep apnea are as follows:
- 100 percent – The veteran has chronic respiratory failure with carbon dioxide retention, requires a tracheostomy, or has cor pulmonale (i.e., the enlargement or failure of the right side of the heart due to lung disease.)
- 50 percent – The veteran requires the use of a breathing assistance device, such as a CPAP machine.
- 30 percent – The veteran is experiencing persistent daytime hypersomnolence (i.e., a condition characterized by chronic daytime sleepiness that does not improve even with sufficient sleep).
- 0 percent – The veteran has a documented sleep disorder, but their condition is currently asymptomatic (i.e., not producing symptoms). Although considered non-compensable, the veteran may still qualify for other benefits, such as VA health care.
Sleep Apnea VA Disability Compensation Rates
Once you are assigned a VA disability rating for sleep apnea, you will receive monthly compensation from VA based on that rating.
As of December 1st, 2021 the VA disability rate benefit amounts are as follows:
- 0 percent disability rating: $0.00 per month
- 10 percent disability rating: $152.64 per month
- 20 percent disability rating: $301.74 per month
- 30 percent disability rating: $467.39 per month
- 40 percent disability rating: $673.28 per month
- 50 percent disability rating: $958.44 per month
- 60 percent disability rating: $1,214.03 per month
- 70 percent disability rating: $1,529.95 per month
- 80 percent disability rating: $1,778.43 per month
- 90 percent disability rating: $1,998.52 per month
- 100 percent disability rating: $3,332.06 per month
While a 0 percent rating does not qualify you for monthly compensation, you may still be eligible for other benefits, such as VA health care. The highest rating, 100 percent, signifies total disability and provides the highest schedular amount of monthly compensation.
Additionally, a rating of at least 30 percent may qualify you for additional compensation if you have a dependent spouse, children, or parents.
TDIU Benefits for Sleep Apnea
Certain symptoms of sleep apnea, such as excessive daytime sleepiness, fatigue, and difficulty concentrating, may impact a veteran’s ability to work. If you are unable to find and maintain substantially gainful employment due to your service-connected sleep apnea, you may be entitled to total disability based on individual unemployability (TDIU).
TDIU is another avenue to securing VA disability compensation at the 100 percent level. Importantly, you do not need to have a 100 percent rating for sleep apnea itself; VA must simply acknowledge that your service-connected sleep apnea – along with other service-connected conditions, if applicable – prevents you from working.
Veterans can qualify for TDIU under 38 CFR § 4.16(a), provided they meet the following schedular requirements:
- A veteran must have one service-connected disability rated at 60 percent disabling or higher; or
- More than one service-connected disability, with one disability rated at least 40 percent, and a combined rating of 70 percent or higher.
Veterans who do not meet the schedular requirements under 38 CFR § 4.16(a) may be considered for extraschedular TDIU under 38 CFR § 4.16(b). To qualify, veterans must display an “exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.” This means that the veteran’s condition must be so unique that the standard disability rating schedule does not adequately or accurately reflect the degree to which the disability limits their functional capacity.
Is Sleep Apnea a Permanent VA Disability?
Generally, sleep apnea is not automatically rated a permanent disability by VA, but if a veteran meets certain qualifications, they may be able to secure lifelong compensation.
For example, if your sleep apnea VA rating has been in place for a certain period of time, VA may assume based on medical evidence that the level of impairment will continue for the rest of your life. It is also generally more difficult for younger veterans to be considered permanently disabled, as VA is allowed to take age into account.
If VA considers your sleep apnea permanent in nature, meaning they are reasonably certain that the condition will continue with zero or close to zero chance of improvement, you will not be scheduled for a re-examination. If this is the case, VA cannot propose a rating reduction.
Was Your Sleep Apnea VA Claim Denied?
If VA denied you VA disability for sleep apnea, there are still options for appealing the decision. The accredited claims agents and attorneys at Chisholm Chisholm & Kilpatrick may be able to help you secure the benefits you deserve. We have decades of experience representing veterans before VA, the Board of Veterans’ Appeals, and the Court of Appeals for Veterans Claims (CAVC). Call us today at 800-544-9144 to for a free case review.
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