Top 5 Questions about Sleep Apnea VA Claims

Among the most common claims for which we help veterans in their fight for disability benefits are sleep apnea VA claims.

As reported by the Veterans Benefits Administration (VBA) in the 2017 Annual Benefits Report, the three forms of sleep apnea (SA)—obstructive, central, and mixed—lead the way in service-connected respiratory disabilities.

VBA’s statistics show that VA awarded 282,323 service-connected sleep apnea ratings. These claims accounted for 26.67% of all body system disabilities in the fiscal year 2017. And that number is growing.

But make no mistake: Those numbers represent awarded claims. VA denies the majority of disability claims for this condition.

The good news we can tell you is that, when the right evidence and facts are the basis for your argument and are submitted correctly, VA sleep apnea claim denials have a strong chance of success on appeal.

Most of the problems we see veterans struggling with are due to two things:

• VA rules for assigning sleep apnea disability ratings and granting benefits have changed over the years. This has resulted in a great deal of misinformation and misinterpretation on the part of both claimants and adjudicators; and
• Current, helpful information the veteran needs as to what VA considers a well-grounded claim for SA disability is just plain hard to find.

Below are the top five questions we answer about veterans’ sleep apnea compensation.

Your master plan is to present to VA the most fully substantiated and compelling claim possible. The following FAQs clarify what it takes to build a successful claim for this condition the first time around, or greatly increase your chances of winning on appeal.

1) What Are VA’s Eligibility Criteria for Sleep Apnea Disability?

To be eligible, VA needs documentation and proof of the following three things:

1. A diagnosis of sleep apnea involving a sleep study from a qualified medical professional;
2. The sleep apnea started during or worsened as a result of, active service;
3. A nexus (connection) between your current diagnosis and the in-service event.

These are the basic requirements.

If you have an in-service diagnosis of sleep apnea in your military records, that is good news. You should meet with little or no resistance from VA in pursuing your claim and gaining your deserved benefits.

But most veterans were not diagnosed with SA during their active military service. Accordingly, VA does not require an in-service diagnosis. If this is your situation, you need to have a sleep study done to provide VA with a current diagnosis that you have the condition.

You also have the burden to provide the service-connection link, as follows.

2) How is Sleep Apnea a Service-Connected Disability?

Once you have your diagnosis, now you need to connect the sleep apnea to your military service. This means filling the gaps from the time of active service until now, with strong medical evidence plus credible lay statements, buddy statements, vocational reports — facts that will demonstrate to the VA that your sleep apnea is related to your service.

This is done by one of two paths:

1. Direct service connection, or
2. Secondary service connection

VA needs to find that your current sleep apnea cannot be reasonably separated from your military service.

Please read our in-depth action plan on how to service-connect sleep apnea for VA disability compensation.

3) Can I Claim Sleep Apnea Disability on a Secondary Basis?

Various conditions are medically linked to sleep apnea. So yes, it may be possible to claim SA as a secondary disability to an already granted service-connected condition.

For any secondary basis claim, establishing service connection requires evidence sufficient to show that:

• a current disability exists (in this case sleep apnea); and
• the current disability was either: (a) proximately caused by, or (b) proximately aggravated by a service-connected disability.

Example:

You have been diagnosed and awarded a VA rating for service-connected asthma. To link your sleep apnea to your asthma you would do the following:

• Obtain a current sleep study-based diagnosis for sleep apnea.
• Provide evidence of nexus between the first service-connected condition (in this example asthma) and the sleep apnea. You are making the case that your sleep apnea is a secondary or residual effect of your service-connected This requires giving VA credible medical and lay evidence, with a medical statement (opinion) from a qualified doctor stating how and why the sleep apnea is “more likely than not” a secondary disability that occurred because of the asthma.

While always important to a sleep apnea VA claim, lay evidence and witness statements alone are often not enough to gain secondary service connection.

Various conditions have been shown to have causative connection resulting in sleep apnea, such as:

• allergic rhinitis
• asthma
• deviated septum
• diabetes mellitus (type 2)
• facial injuries
• migraines
• neck injuries
• PTSD
• TBI
• tinnitus

4) What are Sleep Apnea VA Ratings for 2021?

VA rates sleep apnea with four specific ratings: 0%, 30%, 50%, and 100%, and are shown in the table below. You can find the complete schedule of VA disability ratings for SA and for The Respiratory System under 38 C.F.R. § 4.97, Code 6847.

Code 6847 Schedule of Ratings – Respiratory System
Sleep Apnea Syndromes (Obstructive, Central, Mixed)	VA Rating
Chronic respiratory failure with carbon dioxide retention or cor pulmonale*, or; requires tracheostomy*an increase in bulk or failure of the right ventricle of the heart caused by lung disease; can lead to heart failure.	100
Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine	50
Persistent day-time hypersomnolence** **severe sleepiness, even after normal quality and timing of overnight sleep	30
Asymptomatic (showing no symptoms) but with documented sleep disorder breathing	0

5) What CPAP Machine Does the VA Use for 50% Rating?

Importantly, the 50% rating requires a breathing assistance device. There are various devices (not just CPAP) that VA allows in order for a veteran to get a 50% rating.

First, it is helpful to know the history behind the 50% rating.

In the past, all an eligible veteran needed for a 50% rating was to submit medical proof of a diagnosis of sleep apnea.

Things changed on April 18, 2016, when VA issued a new rule that a breathing assistance device is medically required to earn the 50% rating. This supports the severity of the disability for rating purposes, and supporting documentation should be submitted by a qualified physician. As you will see, the physician’s opinion stating that the breathing device is medically required is very important.

The exact wording for the 50% rating is “Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine.”

Clearly, a CPAP apparatus is just one of several acceptable breathing assistance devices for a veteran’s rating and subsequent treatment of sleep apnea. Each claim and individual is unique. But initially, VA raters were inclined to favor CPAP machines and not give much weight to other breathing assistance devices as viable options for the disabled veteran.

VA has now updated its adjudicator’s manual—the M21-1 Adjudication Procedures Manual—with more specifics for the raters to mutually adhere to. These updates include details about

• Sleep Studies
• Evaluating Sleep Apnea
• Qualifying Devices for Sleep Apnea Treatment
• Required Use of a Breathing Assistance Device, and
• Processing Claims for Increase in Sleep Apnea

The information is available here: M21-1, Part III, Subpart iv, Chapter 4, Section F – Respiratory Conditions. Look for Topic 5. Sleep Apnea and Related Disabilities.

Of great importance to your sleep apnea VA claim is the following requirement:

• Use of a device 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.

So the real “question” is this: Is the CPAP or other breathing assistance equipment medically required? Because in the VA’s eyes the need for breathing equipment it is a medical question that must be answered.

Thus, a well-rounded sleep apnea VA claim will include—along with your prescription for a CPAP or other device—a qualified doctor’s medical statement that confirms how and why the apparatus is medically necessary in your case.

Without it, your claim has little chance to stand up under the adjudicator’s scrutiny.

The rater’s manual goes on to identify all of the other allowed breathing assistance devices (outside of a CPAP machine), as follows:

Other qualifying breathing assistance devices include

• other positive airway pressure machines (automatic positive airway pressure device (APAP); bilevel positive airway pressure device (BiPAP))
• nasopharyngeal appliances (nasal dilators; nasopharyngeal stents)
• oral appliances (mandibular advancement devices (MAD); tongue-retaining mouthpieces), and
• implanted genioglossal nerve stimulation devices.
• Note:  Positive airway pressure machines may also be called non-invasive positive pressure ventilation (NIPPV) or non-invasive ventilation (NIV).

A Veteran’s Case for Sleep Apnea Disability Benefits

VA recognizes the three types of sleep apnea, all of which may seriously damage a veterans’ ability to maintain gainful employment and disrupt normal, everyday functions:

• Obstructive sleep apnea (OSA) – throat muscles relax during sleep, causing partial or complete blockage of the airways. This is the most common form.
• Central sleep apnea (CSA) – the airway is not blocked; instead, the brain fails to transmit the signals that tell the muscles to breathe. This type may be caused by heart disorders, conditions of the cervical spine, obesity, stroke, and
• Complex, or mixed, sleep apnea – a combination of both obstructive and central sleep apnea symptoms.

“Apnea” means temporary cessation of breathing. Also involved in diagnosis are episodes of “hypopnea” which is unusually slow or shallow breathing.

For some veterans, the disorder may be very mild, and for others, sleep apnea is a seriously disabling and possibly fatal condition. Victims may continuously stop breathing up to hundreds of times overnight and for various lengths of time per apnea episode. The result is the veteran’s body and brain suffer a great deficiency of oxygen.

Serious and potentially fatal impairments that may arise secondary to the sleep apnea include stroke, heart disease, insulin resistance, and brain damage.

Our Duty Is to Help Disabled Veterans. Contact Us Today For A Free Consult.

Sleep apnea is a widespread and highly destructive medical problem among veterans. The process of making a claim for this military-related disability can be difficult without help.

No web article can take the place of one-on-one legal advice from an accredited Veterans attorney. Call us at 800-562-9830 to discuss your claim, your appeal, service connection, rating decision and more. We are honored and able to assist you today.