If you are one of the many veterans seeking VA disability compensation for sleep apnea, you have two main aspects to your claim: winning service connection for sleep apnea and obtaining the highest possible sleep apnea disability rating. On the first point, you can read our earlier article with some basic information on sleep apnea and this other article on the basic elements needed to win service connection for sleep apnea.
In this article, our focus will be on how VA assigns a sleep apnea disability rating. Once you understand the criteria VA uses, you will be better able to decide whether VA has awarded you the highest possible VA sleep apnea disability rating that you deserve under the law.
Sleep Apnea Disability Rating Criteria Are the Same for All Types of Sleep Apnea
VA uses the same sleep apnea disability rating criteria for all types of sleep apnea. So, regardless whether you have obstructive, central, or mixed sleep apnea, your symptoms or treatment will determine your sleep apnea disability rating. This makes sense because the symptoms associated with sleep apnea are basically the same even though the underlying causes can be different in different cases.
Your Sleep Apnea Disability Rating Can Range From 0% to 100%
Like many other disabilities in VA law, the lowest possible sleep apnea disability rating is a noncompensable evaluation of 0%. This is the appropriate rating only those veterans who have had a sleep study that documents episodes of stopped breathing during sleep but who do not experience any symptoms as a result of those episodes. This is not a very common rating since most people who experience these breathing stoppages suffer from other symptoms.
The next highest rating is 30%, which is based on evidence of “persistent day-time hypersomnolence.” That is simply the medical term for ongoing sleepiness during the day.
Next, you have a 50% sleep apnea disability rating. This is probably the most common sleep apnea disability rating since most doctors treat this sleep disturbance with CPAP machines or another breathing assistance device. Remember, although the 50% sleep apnea disability rating mentions CPAP machines, you can use another treatment and still qualify at this rating level. For more information on that, check out our earlier article.
Finally, you have the 100% sleep apnea disability rating. These are much less common since they are reserved for the most severe cases of sleep apnea. This level is warranted when certain physiological criteria are met (i.e., chronic respiratory failure with carbon dioxide retention or cor pulmonale) OR when certain radical treatment is undertaken (i.e., tracheostomy).
Where to Find the Criteria for a Sleep Apnea Disability Rating
38 C.F.R § 4.97 provides the schedule of ratings for all respiratory related diseases and disabilities. In the subsection for Restrictive Lung Disease, you will find the sleep apnea disability rating schedule. Here it is:
|6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):|
|Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy||100|
|Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine||50|
|Persistent day-time hypersomnolence||30|
|Asymptomatic but with documented sleep disorder breathing||0|
As you can see, some of the levels are based on symptoms (0% and 30%) while the common 50% is based on treatment. The 100% level can be symptoms or treatment. Make sure the VA does not require you to prove symptoms AND treatment at the 100% level. If you are seeking one of the treatment based ratings, you need to be aware of the VA’s new emphasis on the medical necessity of that treatment. They have rewritten their instructions for their employees when deciding rating increases.
Getting Your Correct Sleep Apnea Disability Rating May Not Be as Simple as It Looks
You may see the above chart and want to pursue your claim on your own. That works for some veterans and not for others. To win, you need to know exactly what must be proven and what you need to prove it. The VA historically has been very loathe to award service connection and high ratings for sleep apnea. If you do decide you need some legal help with your VA disability compensation claim, you can always contact our firm for a free consultation.