Four years ago, 57,679 veterans were receiving disability compensation based on a diagnosis of sleep apnea. Last year, those numbers nearly doubled to 114,103, leading former naval aviator and family law attorney, Michael T. Webster, to cry foul and label the surge in claims as an insult to veterans who suffer from medical problems he sees as truly disabling. Webster’s claim raises questions about the nature of sleep apnea as a disability. Is the disorder truly disabling? Should veterans receive disability payments based on a positive diagnosis of the disease?
In short, according to Webster, the answer to both questions is no. For this reason, he wrote a letter to Rep Jeff Miller (R-Fla), chairman of the House Armed Services Committee, stating, “Virtually every single family law case which I have handled involving military members during the past three years has had the military retiree receiving a VA ‘disability’ based upon sleep apnea.” “A recently retired colonel told me that military members approaching retirement are actually briefed that if they claim VA disability based on sleep apnea, then they receive an automatic 50 percent disability rating….”
According to an article in Stars and Stripes, 88% of veterans with sleep apnea have a 50% disability rating, the value that is required by the VA rating schedule if a veteran has a positive diagnosis for sleep apnea. This rating then allows the retired veteran to boost their monthly income by at least $810 through a system Webster believes is being abused.
As a family attorney, Webster sees countless veterans who can walk up flights of stairs just fine, drive their cars, and work full time, but nonetheless receive disability compensation based on sleep apnea. “It became obvious to me that people who are not disabled were receiving a lot of money. When you see billions being spent on nonexistent disabilities, it is time for someone to say this is wrong. Let’s compensate those who are disabled, but by gosh weed out those who aren’t.”
Henry Johns, RPSGT, CRT, CPFT, a veteran with sleep apnea, and program manager, clinical specialty labs for the VA Eastern Kansas Health Care System, doesn’t stray too far from Webster’s position. “My personal view is that OSA is not a disability nor is it related to military service,” Johns says. “However, I feel there are circumstances where a disability rating for sleep disorders should apply, like neuromuscular disorders, physical injuries, or conditions arising from traumatic brain injury (linked to central apnea, OSA, hypersomnia, and narcolepsy).”
Following this reasoning, if a veteran is not disabled by sleep apnea, compensation isn’t warranted. But what about those veterans who are disabled by the disorder? What should determine who is disabled by the disorder and who is not?
One suggestion is that veterans who receive disability compensation for sleep apnea should be matched against government payrolls to find out who is also drawing full-time civil service pay. This would give the auditor an idea about the severity of the disability, but this route would face problems with HIPAA rules.
Another solution is to have disability checks tied to CPAP compliance. This approach would likely face strong opposition with many seeing it as “big brother” watching to make sure people stick to their treatments.
A more reasonable solution would be to base the disability rating on the severity of sleep apnea. One suggestion is to reserve the 50% rating for those with Cheyne-Stokes respiration and central sleep apnea, while sleep apnea would receive a lower rating such as 10%.
Finally, keeping in mind that all veterans deserve compensation for disabilities that are service related, an environment of sleep apnea awareness and a culture of fairness should be equally fostered among veterans. Webster uses a recent exchange with a veteran as an example. “During a deposition in a divorce case involving a military sergeant, I asked him if he is taking any of his retired pay as VA disability. He looked at me and said, ‘No, I’m not.’ I said, ‘Are you aware how easy it is to get?’ He looked at me and said, ‘Yes, but I’m not disabled and I’m not going to play that game.’”
Thousands of veterans suffer from sleep apnea; for many, it is a disabling disorder, while for some it may not be. For others, it may be disabling, but it is not necessarily service related. My hope is that those who appear to be “gaming the system” don’t jeopardize a structure that allows disability compensation for veterans who are truly disabled by sleep apnea.
