Sleep Apnea Diagnosis+Service Connection=0% Rating

[xman52]

I recently retired from the USA after 21 years. I was diagnosed with servere obstructive sleep apnea 4 years ago. I have used a CPAP since. I applied for VA disability and recieved a rating of 0% because they said the sleep apnea did not impact my ability to hold a full time job. The fact that I have a diagnosis, used a CPAP and confirmed service connection would indicate to me that the rating should have been 50%. I intend to appeal, but would appreciate any advice anyone might have who have been in the same situation. Should I find a support org or pay for a lawyer or dr review of my records. I am at a loss... Any insight would be appreciated! Thanks!

The decision said
" Service connection for sleep apnea has been established as directly related to military service.A noncompensable evaluation is assigned from September 1, 2007. A noncompensable evaluation is assigned for an asymptomatic condition. A higher evaluation of 30 percent is not warranted unless there is persistent day-time hypersomnolence.

The evidence of record indicates that you underwent a sleep study in service at Fort Leavenworth, Kansas in 2003. Diagnosis was sleep apnea. Current findings show that you use a CPAP machine. You have no problems with breathing and you have no signs of of hypersomnolence (need excessive amounts of sleep). The examiner states that your sleep apnea does not affect your occumaption or activities of daily living.

The evidence of record shows that you were initially diagnosed with sleep apnea in service, service connection is granted effective the date after your discharge from service.

This condition is rated at 0 percent disabling because evidence does not show any problems with breathing or any effect on your occupation or activities of daily living. A high evelauation of 30 percent of 30 percent would be warrented if persistent day-time hypersomnolence were shown"

The bottom line is I can's sleep without my CPAP. My problem is probally worse than when diagnosed with 74 instances an hour... What should I do?

[TinCanMan]

...and here I thought only the BVA was capable of ignoring the law and making really stupid decisions. Clearly this decision is contrary to law. The Code of Federal Regulations mandates a 50% award for a diagnosis of sleep apnea with CPAP. Whether you work or not is irrelevent. This is the prime reason an appeal system exists.

File a Notice of Disagreement with the RO and ask for a deNovo review. Just write a letter to the RO and state your name, SSAN , Date of Decision and what it is you disagree with. Follow that by asking for a deNovo review.

Sleep apnea is evaluated under 38 CFR §4.97 Diagnostic Code 6847 where it says in part:

6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):

Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy 100%

Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine 50%

Persistent day-time hypersomnolence 30%

Asymptomatic but with documented sleep disorder breathing 0%

You don't need a lawyer at this stage. Just file the NOD with request for deNovo review. If they fail to give you a full grant of request, they'll send you a Statement of Case (SOC) and a form 9 to request an appeal to the BVA.