Caring. Effective. Efficient.

BVA errs in rating Central Sleep Apnea

BVA errs in rating Central Sleep Apnea

Th veteran sought a higher rating for several service-connected disabilities, including central sleep apnea (CSA), chronic bronchitis, asthma, chronic obstructive pulmonary disease (COPD), and allergic bronchospasms. The Board assigned a rating of 50% and no higher for all of the conditions combined.

In doing so, the BVA made three primary - and common - errors.

First, the BVA cannot invoke the rule in 38 C.F.R. §4.96a against the pyramiding of respiratory conditions unless all the conditions are respiratory in nature. Central Sleep Apnea, while it manifests in symptoms affecting the sleep breathing functions of the body, is not a respiratory condition. It is a neurological condition, and therefore in the opinion of this firm, is not subject to the rule against pyramiding ratings of respiratory conditions under 38 C.F.R. §4.96a.  

Second, if the BVA is going to invoke the rule in 38 CFR 4.96a against the pyramiding of respiratory conditions, it must explain which of the respiratory conditions predominates, and use that as a basis. 

Third, in any case where a veteran has sought an increased rating, and there are symptoms of a condition not envisioned by the schedular disability compensation ratings tables, the BVA has a duty to consider whether an extra-schedular rating is appropriate

The BVA denied this veteran separate ratings for Sleep Apnea and COPD. 

On remand, the Court of Appeals for Veterans Claims made it clear the BVA failed to explain which of the 2 conditions was predominant for rating purposes. Because the veteran's central sleep apnea is a neurologic condition, the BVA also failed to consider what diagnostic code should be assigned to rate his sleep apnea.

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney: Abigail J. Schopick

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge: Deborah W. Singleton

Regional Office: Boise, Idaho

Vets’ Rep at BVA: American Legion 

Date of BVA Decision: January 29, 2016

Date of CAVC Judgment on Remand

Recent Cases

This case involves the special, and very powerful, Nehmer effective date rules.  Mr. Greene, the veteran, sought an effective date for his service connected coronary artery disease. He argued his effective date should go back to 2006, the first clai… Read More
This case involves the BVA’s rejection of a theory of service connection by aggravation for a back condition. The BVA refused to service connect the veteran’s back injury, which he argued was aggravated by service-connected knee and hip i… Read More
  This case involves a veteran who served in the Air Force from 1953 to 1957. During service, he injured his back on a flight line, and has repeatedly tried to service connect the injury since leaving service in 1957. Each time, the claim was de… Read More

See More Appellate Results

Taking Point! Blog

Jul
24
Even as protestors march across bridges across the nation, from the Brooklyn Bridge to the Golden Gate, history teaches us that America is resistant to acknowledging the persistent racism that plagues this country and even worse, resistant to do… Read More
Jun
26
“I am a Black man who jogs” was written by Augustus Turner, Mr. Turner retains all copyright to the image and content; it is republished here with his permission. Augustus Turner is a husband, a father, a soldier, and an attorney.… Read More
Sep
30
Earlier this year, I tested an idea – what if a group of lawyers grabbed a virtual cup of coffee every Monday morning and chatted about their progress building a profitable law firm that prioritizes the attorney’s well being? Thos… Read More
Sep
6
If you hear the phrase, lawyers with a purpose, what is your immediate reaction? Do you roll your eyes? Yawn? Close this page and find something else to read? I’ll be honest, the first time a business coach told me that my law practice… Read More

Read the "Taking Point!" Blog