Veterans Benefits Network-Sleep apnea and Asthma rated at 60% (2023)

I recieved my rating from the VA and they combined asthma and obstructive sleep apnnea (OSA) to a rating of 60%.

My OSA is rated at 50% and my asthma is at 30% for daily medication. The narrative is as follows:

The evaluation of Asthma with (OSA) is granted with an evaluation of 60%. 38 CFR 4.96 requires that your respiratory conditions, which include asthma and OSA be assigned under a single evaluation which reflects the predominant disability, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. The predominant disability in this case is asthma which warrants a 60% evaluation.

We have assigned a 50% evaluation for your sleep apnea based on the requirement of the use of a C-pap machine.

We have assigned a 30% evaluation for your asthma based on daily inhalation therapy.

Please note that the sleep apnea rating code is 6847 and the asthma rating code is 6602. The above provision is being applied, resulting in these two conditions being rated together.

I think they messed up and someone thinks the asthma is the dominate disability rated at 60% when it's is only 30%. What does everyone else think?

msleer wrote: I think they messed up and someone thinks the asthma is the dominate disability rated at 60% when it's is only 30%. What does everyone else think?

No, they didn't "mess up." What the Rating VSR did was to utilize a provision of 38 CFR 4.96 thatis occasionally found to be applicable. Please note the part of 38 CFR 4.96 that I have highlighted:

(a) Rating coexisting respiratory conditions. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. However, in cases protected by the provisions of Pub. L. 90–493, the graduated ratings of 50 and 30 percent for inactive tuberculosis will not be elevated.

What the Rating VSR did was to elevate the 50 percent evaluation for sleep apnea to the next higher evaluation which would be the 60 percent evaluation for asthma. In order to do this the Rating VSR had to determine thatin your particular situation the overallseverity ofthe combined effectsof the two conditions warranted doing this. In most cases a single 50 percent would have been assigned, but apparently yours was felt to be an exception.

Cruiser

The RO found that 38 C.F.R. § 4.96 bars the assignment of a
separate rating for the asthma condition apart from the sleep
apnea condition. However, that provision states that ratings
under Diagnostic Codes 6600 through 6817 will not be combined
with each other. That provision also states that ratings
under Diagnostic Codes 6822 through 6847 will not be combined
with each other. The two specified ranges of diagnostic
codes are stated in the disjunctive and thus, the provision
does not automatically prohibit the assignment of a rating
under Diagnostic Codes 6600 through 6604 in addition to the
assignment of a rating under Diagnostic Codes 6822 through
6847.

Furthermore, under 38 C.F.R. § 4.96, a separate rating can be
assigned for asthma even when the veteran is receiving
compensation for sleep apnea. While these respiratory
conditions each impair his ability to breathe, each condition
has distinct and separate symptomatology. The sleep apnea is
caused by obstructive factors and results in disruption of
breathing during sleep; the condition is alleviated by the
use of CPAP. The asthma is caused by exposure to allergens
and irritant particles and results in recurrent attacks of
spasmodic contraction of the bronchi; the condition is
alleviated by the use of bronchodilators. Because the
symptomatology does not overlap, a separate rating should be
assigned for the asthma. See Esteban v. Brown, 6 Vet. App.
259, 261-62 (1994).

I have a appeal for both conditions pending, i think you have to do your research and you well find the answer i'm rated at 92.4 pending these two disabilities.

I've been rated 60 for Asthma 50 for OSA and 30 for chronic sinusitis. I believe these are all respiratory problems.

Odie
100 P/T

odie wrote: I've been rated 60 for Asthma 50 for OSA and 30 for chronic sinusitis. I believe these are all respiratory problems.

My guess is that they will eventually catch their error and combine the asthma rating with the OSA rating. The up side is that you won't have to repay any compensation that is awarded to you as a result of this error.

Cruiser

Cruiser wrote:

msleer wrote: I think they messed up and someone thinks the asthma is the dominate disability rated at 60% when it's is only 30%. What does everyone else think?

No, they didn't "mess up." What the Rating VSR did was to utilize a provision of 38 CFR 4.96 thatis occasionally found to be applicable. Please note the part of 38 CFR 4.96 that I have highlighted:

(a) Rating coexisting respiratory conditions. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. However, in cases protected by the provisions of Pub. L. 90–493, the graduated ratings of 50 and 30 percent for inactive tuberculosis will not be elevated.

What the Rating VSR did was to elevate the 50 percent evaluation for sleep apnea to the next higher evaluation which would be the 60 percent evaluation for asthma. In order to do this the Rating VSR had to determine thatin your particular situation the overallseverity ofthe combined effectsof the two conditions warranted doing this. In most cases a single 50 percent would have been assigned, but apparently yours was felt to be an exception.

Cruiser

I realize this is an old post but it kinda fits my situation. So, here's a question for you, I've beenrated at 30% for Sleep Apnea for years and 0% for Allergic Rhinitis (AR). I've recently developed Asthma. The Pulmonologist told me it was because of incompletely treated AR. So I put in a new claim for Asthma secondary to AR and an increase for AR due to Nasal Polyps.The VA increased my 0% AR to 30% and rated me at 30% forAsthma butlumped my Asthma in with Sleep Apnea and continued the current 30% rating. So the 30% rating for Asthma does me no good at all.
They said a separate compensable evaluation for asthma is not warranted, as the functional impairment imposed by this condition is the same as that due to my Sleep Apnea. Therefore, these conditions are rated together and are considered under the diagnostic code that results in the greatest benefit to me.
How does that benefit me when they rate me at 30% and it does me no good? and is there a way for me to change the Asthma rating to a separate compensable rating?
Thanks

Hooya wrote:The VA increased my 0% AR to 30% and rated me at 30% forAsthma butlumped my Asthma in with Sleep Apnea and continued the current 30% rating.

(Video) Answers to Veterans’ Common Questions on IU Benefits – Attorney Neil Woods of Woods & Woods explains

is there a way for me to change the Asthma rating to a separate compensable rating?

The short answer is "No." Actually the long answer is "No" also.

38 CFR 4.96(a) specifically prohibits the assignment of separate ratings for these conditions. They determine an evaluation for each condition under their applicable evaluation criteria and then assign the highest of the two to cover both conditions.

There is a relatively rarely used provision of the regulation that allows them to elevate the evaluation to the next higher evaluation when in the mind of the decision maker the combined effects of the two conditions is not adequately being compensated by the evaluation that would normally be assigned. Apparently the decision maker did not see this to be the case in your situation. If memory serves me correct I think that during all my years as a rater/DRO I only applied this one time.

Cruiser

Cruiser:
Well, thanks for the quick reply. It kinda sucks because both conditions affect me in two completely ways. I guess the only thing I can do is to go back and get my sleep apnea increased to 50% I'm pretty sure I'm at the stage where I can use a CPAP now. My wife has started complaining regularly about me snoring... Once again, thanks

Hooya wrote:The VA increased my 0% AR to 30% and rated me at 30% forAsthma butlumped my Asthma in with Sleep Apnea and continued the current 30% rating.

is there a way for me to change the Asthma rating to a separate compensable rating?

The short answer is "No." Actually the long answer is "No" also.

38 CFR 4.96(a) specifically prohibits the assignment of separate ratings for these conditions. They determine an evaluation for each condition under their applicable evaluation criteria and then assign the highest of the two to cover both conditions.

There is a relatively rarely used provision of the regulation that allows them to elevate the evaluation to the next higher evaluation when in the mind of the decision maker the combined effects of the two conditions is not adequately being compensated by the evaluation that would normally be assigned. Apparently the decision maker did not see this to be the case in your situation. If memory serves me correct I think that during all my years as a rater/DRO I only applied this one time.

Cruiser