Many veterans assume that if they suffer from two respiratory conditions they can receive separate disability ratings for both. This assumption makes sense from the veteran’s perspective. After all, respiratory conditions can have vastly different impacts on the body. For example, a condition like sleep apnea causes muscles in the throat to block airways during sleep, while a condition like asthma causes airways to become enflamed. These conditions not only have different effects on the body, but are also treated differently by doctors. So they should be rated by the VA differently, right? Not so, according to the VA.
The VA has implemented a special regulation that prevents veterans from being rated for multiple respiratory conditions, 38 C.F.R. §4.96. Under this regulation, when a veteran claims, and is granted service-connection for multiple respiratory conditions the rating specialists must choose the condition that is considered the “predominant disability.” The rating specialist then rates all of the veteran’s respiratory conditions under the predominant disability’s diagnostic code.
So, how do the rating specialists choose the predominant disability? Unfortunately, the VA did not define the term in the regulation, so we must look to federal case law for our answer. In Urban v. Shulkin, the Court of Appeals for Veterans Claims determined that the predominant disability is the disability that entitles the veteran to the highest disability rating for. It is important for veterans to note, the predominant disability is not the disability with the greatest potential severity, but the disability that can currently be rated the highest.
After the rating specialist has chosen the predominant disability, you may wonder how they determine the disability rating. Let’s assume that a veteran has two respiratory conditions: sleep apnea that could be rated at 50% and asthma that could be rated at 60%. 38 C.F.R. §4.96 prevents the veteran from receiving both ratings, so we have to find the predominant disability, which in this case would be asthma. In this hypothetical situation, the veteran would be assigned a 60% rating for asthma. (Note that, under Urban v. Shulkin, the VA would still need to look at sleep apnea symptoms, to see if all of the symptoms from both sleep apnea and asthma would allow for a higher rating under the asthma rating code.)
With the initial rating set, how does a veteran determine what he would be entitled to, should his disability increase in severity? If a veteran has sleep apnea that could be rated at 50% and pulmonary vascular disease that could be rated at 0%, the veteran’s predominant disability would be sleep apnea and he would receive a 50% rating. Now, let’s assume that the veteran’s pulmonary vascular disease increases in severity to the point where it could be rated at 30%, would the veteran’s rating situation change? No. Sleep apnea would still be the predominant disability, and the veteran’s rating would still be 50%. However, if pulmonary vascular disease were to increase in severity to 60%, would that change the veteran’s rating situation? Yes, at that point, pulmonary vascular disease would become the veteran’s predominant disability and the veteran would be entitled to a 60% rating.
For any veteran dealing with rating multiple respiratory conditions, please keep in mind that 38 C.F.R. §4.96 does not prevent you from seeking extra-schedular rating.
If you need assistance with VA benefits claims for multiple respiratory conditions, we are here to help. Call Bosley & Bratch at (800) 953-6224 or complete our free veterans benefits case evaluation form.