38 CFR § 4.97, Sleep Apnea
- Diagnostic Code: 6847
In the words of the great Bob Dylan, “The Times They Are A-Changin’”—and that applies to your sleep apnea claim. We’ve been hearing for a while about upcoming changes to VA ratings for sleep apnea, and they could happen any day now. If you suspect that you have sleep apnea, now is the time to take action because these new changes could limit your potential for compensation.
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Understanding Sleep Apnea Through the VA’s Eyes
The VA rates sleep apnea under 38 CFR § 4.97, Diagnostic Code 6847, which categorizes it based on severity:
- 0% Rating: Diagnosed but asymptomatic (no symptoms requiring treatment)
- 30% Rating: Persistent daytime hypersomnolence (excessive daytime sleepiness)
- 50% Rating: Requires the use of a CPAP machine (continuous positive airway pressure)
- 100% Rating: Chronic respiratory failure or need for tracheostomy
For a veteran to receive a VA disability rating for sleep apnea, they must prove that the condition is connected to their service. There are three primary ways to establish this:
- Direct Service Connection – Demonstrating that sleep apnea began during military service.
- Secondary Service Connection – Showing that a service-connected condition (such as tinnitus or PTSD) led to or worsened sleep apnea.
- Aggravation of a Preexisting Condition – Proving that military service aggravated an already diagnosed sleep apnea condition.
Because many veterans don’t receive a sleep apnea diagnosis while in service, the secondary service connection route is often the best approach.
What are the Coming Changes to the Sleep Apnea Claims Criteria?
Right now, if you’re prescribed a CPAP machine for your service-connected sleep apnea, you automatically get a 50% rating. For the new update, veterans prescribed a CPAP machine may only receive a 10% rating. To get up to the 50% threshold, you will have to show that:
- Your current treatment (including the CPAP) is ineffective (or)
- You can’t use your CPAP machine (or other prescribed treatment) due to another condition.
How to Maximize Your Sleep Disability Compensation
Now that you understand more about sleep apnea, let’s talk about four tips that could help you increase your VA disability rating for this condition.
Tip #1: Submit Your Intent to File ASAP
Do you suspect that you have sleep apnea? Maybe you snore, gasp, or toss and turn through the night. Maybe you never feel rested, and you find yourself falling asleep throughout the day. Maybe your focus is fuzzy, or you are more irritable than you used to be.
If you display any symptoms of sleep apnea, submit your intent to file. If you decide not to complete your claim, you have lost nothing. But if you do win your claim, your compensation will be backdated to your intent to file date. An earlier intent to file date = more compensation for you.
Keep in mind that this doesn’t just apply to new sleep apnea claims. If your sleep apnea has gotten worse, or if you think your sleep apnea is underrated, you can file a supplemental claim to present new evidence and request another claim review.
Once you’ve locked in your intent to file date, you have a full year to finish your claim. That gives you a generous window to see your doctor, get a sleep study, etc.
Another big advantage of submitting your file as soon as possible is that you will likely be grandfathered in under the old sleep apnea rating criteria, which is not as restrictive as the pending criteria.
Tip #2: Don’t Disqualify Yourself if You Don’t Use Your CPAP
You should be using your CPAP for your health, but if you haven’t been using it, don’t assume you can’t file a sleep apnea claim. The current regulations speak to your requiring a CPAP, but they do not speak to how often you use it.
Maybe your CPAP makes it hard for you to sleep. (Hint: Many machines are tuned to too high of a setting, which makes them very bothersome.) Maybe you’re claustrophobic. Maybe you have anxiety, which causes you to fear that the CPAP will lose power in the night and suffocate you. These are all common reasons for not wearing the CPAP, and they don’t need to stop you from filing for a sleep apnea VA claim.
Side Note: While we recommend filing your sleep apnea claim now, if you were to file after the new rule takes effect, you could lean into the reasons described above as limitations that keep you from using your CPAP. They could potentially fill the requirement to show that you can’t wear the CPAP and make you eligible for a 50% rating.
Tip #3: Don’t Overcomplicate Things
You will need documentation of a current diagnosis. You will also need documentation connecting your diagnosis to your military service. However, if you were diagnosed with sleep apnea while you were in the military, you should be standing on solid ground.
A lot of people go to great lengths to try to prove this service connection, even though they were diagnosed while in the military. They may solicit buddy letters from spouses or girlfriends or battle buddies attesting to how they snore or gasp in the night. However, these letters can needlessly complicate cases where the veteran received a diagnosis while still in the military.
Tip #4: Consider Claiming Sleep Apnea as a Secondary Condition
If you received a sleep apnea diagnosis while serving in the military, you have a strong chance of getting VA compensation. But what happens if you didn’t? One option is to file a secondary claim, where you show that your sleep apnea developed as a result of another service-connected condition, such as PTSD or tinnitus. You could potentially even show that certain conditions, like a knee or hip joint, keep you from exercising, contributing to weight gain and sleep apnea.
Make sure that you can support your claim with the proper documentation, including a current diagnosis. This may involve getting a sleep study if you haven’t had one in the past 12 months. You should also seek out a nexus letter from a physician. This letter can tie your sleep apnea to the primary service-connected condition. For example, you can get a nexus letter for sleep apnea secondary to tinnitus.
Your nexus letter should use verbiage such as, “It is at least as likely as not that [patient’s] sleep apnea was caused by his/her [service-connected condition].”
You can help your physician out by presenting them with studies showing the connection between your primary and secondary conditions. You can even work these into a nexus letter template, making it much easier for them to write an effective nexus letter on your behalf. (This is especially critical if they have never written one of these letters before and do not know the proper verbiage to use.)
You can also write a personal statement describing your apnea and citing academic studies linking your primary service-connected condition to your apnea. When you present the VA with compelling, double-blind scientific studies supporting your case, you make it much harder for them to deny your claim.
The coming changes won’t make it impossible to get higher-level compensation for sleep apnea, but they will likely make it more difficult. That’s why it’s important not to let another week pass without submitting your intent to file. And if the process feels overwhelming, we get it, and we can help. Contact VA Claims Academy for templates for personal statements and nexus letters and other resources that make it easier than ever to win your sleep apnea VA claim.
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Infographic
If you suspect you have sleep apnea and are seeking VA disability compensation, taking prompt and strategic action can significantly improve your chances. This infographic offers four key tips to help boost your VA disability rating for this condition.
