The Bad “Secret” Change to VA Sleep Apnea Rules

VA sleep apnea rules changed.  Did you notice?

Probably not, because these changes are deep within VA’s claims adjudication manual that VA claims examiners use to decide claims.  If you are a veteran seeking VA sleep apnea disability compensation, here is what you need to know so you can meet the newest requirements by VA.

Where Are These Changes to VA Sleep Apnea Rules?

If you have been through the VA disability process before, you probably know that VA decision making seems random with different VA personnel deciding the same types of claims very differently.  The process is often filled with delays and errors that could be avoided.

It may surprise you to learn that the VA actually has a series of written policies on how to decide VA disability claims.  This huge document is a “playbook” for VA personnel to use in deciding every type of VA claim.

That playbook is M21-1MR Adjudication Procedures Manual.  The M21-1MR is constantly being updated in a piecemeal fashion.  One of those most recent updates was the section dealing with the adjudication of VA sleep apnea disability claims.

Beware This Pitfall in VA Sleep Apnea Claims

One of the two changes makes it a little easier for the Regional Office to deny your VA sleep apnea claim at the 50% disability rating level.  The diagnostic criteria for a VA sleep apnea claim, found in the Code of Federal Regulations, have not changed.  For a 50% rating, the diagnostic criteria still “Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine.”

But, with these changes in the VA playbook, VA is placing a greater emphasis on what is meant by the word “required.”  Look at this new language in the m21-1MR:

• “When determining whether the 50-percent criteria are met, the key consideration is whether use of a qualifying breathing assistance device is required by the severity of the sleep apnea.”

A little bit later on, the manual now says,

• “Use absent a medical determination that the device is necessary does not qualify.  The regulation requires that the device be necessary and this is a medical question.”

That last phrase should be a warning – and a clue – to you.  In the past, if you presented evidence that your doctor prescribed a CPAP machine to help with your sleep apnea that was sufficient evidence in the eyes of VA for a 50% VA sleep apnea rating. VA personnel were like me; they assumed doctors did not prescribe anything that was not medically necessary.

So, a prescription for a CPAP was proof that it was required for treatment of sleep apnea.  Now, you need more than that because VA refuses to assume anything.

What You Can Do to Safeguard Your VA Sleep Apnea Claim?

VA’s own playbook now says the necessity of a CPAP or other breathing assistance device is a medical question.  In VA sleep apnea claims (and all VA disability claims, really), medical questions can only be answered with medical evidence.  That usually means a doctor’s opinion.

The bad news is that this extra scrutiny by VA will be a trap for the unwary.  If a veteran doesn’t have a statement from the doctor saying the CPAP is medically necessary, it is an invitation for VA to deny the claim now.

So, get the prescription for the CPAP or other breathing assistance device.  Also, have the doctor put in writing that the device is medically necessary to treat the sleep apnea.  Your doctor may give you a funny look when you ask him to give written justification for his prescription, but if he knows anything about the VA he should understand.

All The VA’s Secrets Aren’t Bad – We Will Tell You Those, Too

The VA also slipped in another little secret into their playbook.  This one is not a “dirty little secret” like this new medical necessity requirement.  Instead, this other one will probably help some veterans – if they know about it.