How will the VA rating changes for sleep apnea affect my disability?

Sleep apnea is a breathing disorder that interrupts a person’s breathing. This interruption can last from 10 to 30 seconds and may occur up to 400 times a night for those who suffer from a severe case of this condition. Because sleep apnea is both a chronic and progressive condition, it usually worsens over time.

Those who suffer from this chronic condition are at risk of a variety of problems, including four times greater risk of stroke, three times greater risk of heart disease, and an increased chance of being involved in a traffic accident. According to the National Sleep Apnea Concept Surrounded by Medication and a StethoscopeHighway Traffic Safety Administration (NHTSA), drowsy driving related to symptoms of sleep apnea is responsible for 100,000 car accidents and over 1,500 deaths a year.

Veterans are particularly susceptible to sleep apnea. Over 420,000 veterans who served in the military following 9/11 and receive disability from the United States Department of Veterans Affairs (VA) have sleep apnea that is service-connected. And although there are many causes of this condition, including age, obesity, and a deviated septum, many doctors believe this condition is also caused by long-term exposure to chemicals and dust. Military personnel often work and fight in environments that contribute to sleep apnea.

Because sleep apnea has been associated with fatigue, heart problems, hypertension, and memory problems, it’s possible for this condition to interfere with your ability to work or sustain gainful employment. If so, you may be eligible for VA Disability benefits. However, the VA rating for sleep apnea is changing, and you may have questions about how those changes affect your current disability or your eligibility if you want to apply.

Questions About the New VA Rating Changes for Sleep Apnea

Because so many veterans are on disability for sleep apnea, the changes to the rating system could have a broad and significant impact. If you’re receiving VA compensation for sleep apnea, here are answers to some questions you may have:

  1. What are the new changes being made to the VA sleep apnea rating system? There are two changes being made to the rating. Change 1: A veteran must show that the CPAP he’s using is a medical necessity. Thus, a letter from your doctor will be needed to explain that the prescribed breathing device is needed for medical treatment of your sleep apnea. Change 2: Veterans can use breathing devices other than a CPAP and still be eligible for a rating of 50 percent. This is helpful for veterans because doctors can prescribe different devices to treat sleep apnea, including APAP and BiPAP machines and dental aids. Consequently, if your doctor prescribes a CPAP or any other breathing device, and he can provide evidence that in order to treat your sleep apnea condition, your device is medically necessary, it’s likely you’ll be approved for a 50 percent rating.
  2. Why did the VA make these changes? A primary factor is the cost of sleep apnea disability for veterans. Disability compensation claims for veterans suffering from sleep apnea increased by 150 percent from 2009 to 2014, and according to reports, annual compensation for this condition continues to rise. Additionally, approximately 9 of 10 veterans who receive disability for sleep apnea are given a 50 percent disabled rating. This can mean a monthly payment of over $800.00. Due to the increased cost of compensating for this condition, the rules were reviewed.
  3. Will the changes affect my current disability benefits or a pending claim? The M21 – 1MR VA Handbook does not specifically state how the changes will impact current and pending claims. It’s recommended that you look at your C-File to see if there is a doctor’s statement providing solid evidence that your breathing device is a medical requirement in treating your sleep apnea. If there is no such statement, it’s a good idea to get one from your doctor and add it to your file. Additionally, ask that your doctor explain why you need the device as if he is providing evidence to an insurance company. Ask that he be detailed and give clear reasons for prescribing the device. If you have a VA doctor, you may want to invest in getting this letter from a private physician. It’s possible that a VA doctor won’t agree to provide this letter for you.
  4. What if I don’t use my breathing device as often as I should or the way I’m supposed to? The VA rule change states: “If the competent medical evidence of record shows that use of a qualifying breathing assistance device is medically required, the fact that the claimant is not actually using it as prescribed is not relevant.” So for now, if your use of the breathing device is not compliant with the required use, the VA will not reduce or stop your benefits. However, all other medical systems require that, in order to be covered by insurance, a patient must use the breathing device properly and consistently. Thus, it’s possible that the VA will also require that a patient be compliant with his device.

If you are a veteran who suffers from sleep apnea due to your military service, and your symptoms make it difficult to work, or you were denied benefits for this condition, contact us at 402-933-5405. We’ll discuss your situation and determine how we can help get you the VA benefits you deserve.

 

Sean D. Cuddigan
SSA and VA Disability Attorney in Omaha, Nebraska