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Can the VA Take Away Your Rating for Sleep Apnea?

Can the VA Take Away Your Rating for Sleep Apnea?

Sleep apnea affects thousands of Veterans each year. Many Veterans get their sleep apnea due to their military service. Because their condition is caused by service, they qualify for disability benefits, including monthly financial compensation.

A recent blog post from the Department of Veterans Affairs has made many Veterans wonder whether the VA can take away their sleep apnea ratings. Let’s look at what the blog post means, how your sleep apnea rating may change, and what you can do.

What Is Sleep Apnea?

Sleep apnea is a sleep disorder that can include symptoms ranging from minor to severe. If you have sleep apnea, your breathing is interrupted repeatedly throughout the night. This occurs when your airway is obstructed due to snoring or how your jaw is positioned while you rest.

Sleep apnea can have long-term negative consequences over time. As your breathing is interrupted, your body momentarily awakens from deeper sleep to adjust. If left unchecked, this can prevent you from getting the deep sleep your body and brain need to recuperate fully from the day’s activities.

You may experience three types of sleep apnea:

  • Obstructive sleep apnea, which is the most common form and is caused by your throat muscles relaxing enough that they obstruct your airway
  • Central sleep apnea, which is less common. It occurs when your brain’s normal automatic signals to keep breathing don’t function properly
  • Complex or mixed sleep apnea, which includes the symptoms of both of the above sleep apnea types

Some of the long-term complications from sleep apnea can include:

  • Liver problems
  • Daytime fatigue and irritability
  • High blood pressure or hypertension
  • Type 2 diabetes
  • Chronic respiratory failure
  • Cor pulmonale, which is heart failure on the right side of the heart

Because these conditions can be so severe, getting medical attention or treatment for your sleep apnea early on is important. The faster medical professionals can treat your sleep apnea, the less likely these conditions will develop.

Can PTSD Cause or Worsen Sleep Apnea?

Unfortunately, Veterans may develop sleep apnea not from a specific event or injury but because of service-connected PTSD.

PTSD can cause or aggravate sleep apnea by changing how Veterans sleep and their brains function. In this way, Veterans may qualify for secondary service-connected sleep apnea benefits if they already have service connection and benefits for their PTSD. 

The logic goes that an affected Veteran would not have sleep apnea had they not developed PTSD because of their military service.

However, even Veterans with sleep apnea may find their condition worsened by service-connected PTSD. In these situations, they may be able to receive monthly disability compensation.

What Are the VA Disability Ratings for Sleep Apnea?

The VA rates sleep apnea on a scale from 0% to 100%, with possible ratings including 30% and 50% in between. The VA rates Veterans’ sleep apnea based on their displayed and diagnosed symptoms and whether they need a CPAP machine.

A CPAP or Continuous Positive Airway Pressure machine is a mask connected to an automatic machine that the Veteran wears at night. It ensures that the Veteran has a constant flow of air to prevent interruptions to their breathing. Whether or not a Veteran requires a CPAP machine for sleep apnea greatly impacts their disability rating.

VA disability ratings include:

  • 0% if your sleep apnea is diagnosed but is asymptomatic
  • 30% if you experience persistent daytime hypersomnolence because of your sleep apnea
  • 50% if you require the use of a CPAP machine or another breathing assistance device
  • 100% if you have chronic respiratory failure with carbon dioxide retention and require a tracheostomy

Are There Proposed Changes to VA Ratings for Sleep Apnea?

Normally, any Veteran prescribed a CPAP machine receives a 50% disability rating from the VA for their sleep apnea. However, the VA recently announced proposed changes to its rating schedules for various disabilities, including sleep apnea.

Under the terms of this proposal, Veterans who are prescribed CPAP machines no longer automatically qualify for 50% disability ratings. Instead, they would only receive 50% ratings if CPAP treatment is ineffective based on the results of sleep studies or if a given Veteran cannot adhere to the CPAP treatment because of another condition.

This change comes at a great cost to Veterans affected by sleep apnea. Sleep apnea is a chronic condition that often gets worse with time rather than getting better. Furthermore, not all sleep studies accurately capture the discomfort and disabling side effects of sleep apnea when performed on affected Veterans.

Will Your Rating for Sleep Apnea Decrease?

The VA cannot take away your rating for sleep apnea if you have already received one.

Even if the VA continues with the above-mentioned policy change, it will not change any pre-existing disability ratings for Veterans’ sleep apnea if those ratings have already been decided.

Put in simple language, if you have already received a 50% or higher rating for your sleep apnea from the VA, you don’t need to worry about your rating decreasing just because of this proposed change. You may see your sleep apnea rating decrease under normal VA benefits rules.

However, Veterans who have yet to receive a sleep apnea rating from the VA should do so now. That’s because the proposed changes will affect new sleep apnea disability ratings.

For instance, if you apply for VA disability benefits for your sleep apnea several months from now and require a CPAP machine, but treatment is effective, you may receive a disability rating of below 50%. If you get a disability rating prior to the rule change and require a CPAP machine, you could still qualify for the old rating of 50% under the previous rules.

Ultimately, getting rated at the earliest opportunity is wise if you haven’t yet done so. You can rely on the expertise of Veterans law attorneys to assist you throughout this process, including helping you file your disability claim quickly.

Can Your VA Rating Decrease?

While the VA will not take away your rating for sleep apnea if you have already been rated, it can decrease or even eliminate your disability rating under other circumstances.

Conditions like sleep apnea are normally re-examined within 2 to 5 years after initial Compensation and Pension (C&P) exams. For instance, if you were rated for your sleep apnea in 2020, you may be subject to a re-examination sometime shortly.

If your sleep apnea has materially improved or your symptoms have decreased, your disability rating may also be subject to a decrease. There are a few exceptions to this, however:

  • If your rating has been in effect for five years, it can’t be reduced unless your condition has sustainably improved
  • If your rating has been in effect at the same level for 10 years, it cannot be terminated under any circumstances unless the VA proves fraud on your part
  • If your rating has been in effect for 20 years, it can’t be reduced below the lowest rating you received for the past 20 years (again, unless the VA proves fraud on your part)

Your rating will only decrease if your symptoms decrease, meaning you need less disability compensation for medical care, CPAP machine maintenance, etc.

If your symptoms have remained the same over the last few years, if you sit for a re-examination with the VA or a licensed medical provider, your disability rating will also stay the same. Again, you shouldn’t worry about the proposed rating system changes. They only apply to new disability claims filed by Veterans with sleep apnea.

Contact Berry Law

Ultimately, if you already have a VA sleep apnea disability rating, don’t expect it to change just because of the proposed changes to the rating system. But if you haven’t yet been rated for your sleep apnea, get it rated ASAP. The sooner you get it rated, the easier it will be to maximize your disability compensation.

The knowledgeable lawyers at Berry Law can help. Our experienced attorneys can help you file a claim or appeal a previously denied claim for benefits, depending on your needs. Contact us today to learn more.

Sources:

VA proposes updates to disability rating schedules for respiratory, auditory, and mental disorders body systems | VA News

What Is Sleep Apnea? | NHLBI, NIH

Sleep Apnea | VA.gov

Berry Law

The attorneys at Berry Law are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

This material is for informational purposes only. It does not create an attorney-client relationship between the Firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this blog are not a substitute for legal counsel.

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