Tougher VA Standards Expected for Rating Sleep Apnea

Are you one of the 25,000 veterans awarded service connection for obstructive sleep apnea just last year? Are you one of the 13 percent of approximately 427,000 post 9/11 veterans who draw compensation benefits and have service-connected sleep apnea? If you are, you are among the more than 114,000 veterans that are already drawing compensation for sleep apnea. If you are rated at 50 percent, you likely are well aware that simply your use of a CPAP machine is the sole reason for that rating. The VA, however, is setting out to change that.

The Veterans Affairs Schedule for Rating Disabilities (VASRD) is designed to assign ratings based what the functional impairment is of a service-connected condition. Take for example a service-connected knee condition that has resulted in a replacement. After successful surgery the highest possible rating is usually 30 percent because the VA estimates that the surgery fixes your pre-surgery problem by providing you with a new joint, yet they acknowledge you will still have functional loss because the artificial knee will never be the same as the natural knee you were born with. Therefore, based on how the VASRD is supposed to work, people are starting to ask what could possibly be the functional impairment of using a CPAP machine that warrants a 50 percent rating.

Sleep apnea is a condition that creates disturbances in one’s breathing while sleeping, causing the person to shift between deep sleep and light sleep. When severe, significant interruptions in breathing could lead to cognitive impairments and excessive daytime drowsiness. Those who suffer from a more severe form use a CPAP, or continuous positive airway pressure machine, to aid them in sleeping at night so as to avoid those interruptions and provide for a more restful and more oxygenated sleep. So in theory, if a veteran’s overall daytime function is greatly improved by using the machine while sleeping, is his/her overall level of function truly cut in half simply because they use that machine?

While there are logical comparisons to make against the preceding line of thinking (e.g. Veterans are still rated for their level of hearing loss despite hearing aids making them “more functional”), expect the VA to likely win out on the fight to change the rating. No one can yet predict what the changes will look like, though Jonathan Hughes, a policy consultant for the VAs compensation service, said that if anything changes within the sleep apnea rating, it will likely be just the 50 percent because of the current CPAP stipulation. As we unfortunately know with the VA though, anything can happen.

If you are one of the veterans that answered yes at the outset, you do not have to worry about any proposed changes. By law the VA is prohibited from reducing your rating based on a change in the rating schedule. If your claim is currently pending or your condition is progressing towards the need for a CPAP, you likewise may not be at risk as these types of changes take time to implement and hopefully your claim gets adjudicated in the meantime. The VA is looking to overhaul the entire VASRD by January 2016, not just sleep apnea. For more information, contact a veterans disability lawyer from Bosley & Bratch.

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