The Department of Veterans Affairs (VA) is proposing changes to the VA Schedule for Rating Disabilities specifically pertaining to the respiratory and auditory systems as well as mental disorders. The “savings” from these proposed changes will come directly at the cost of veterans. The VA states these savings are projected at $100 billion dollars over the next 10 years. That equals $100,000 directly from 1 million Veterans’ pockets.
The main conditions affected are Sleep Apnea, Tinnitus, and Post-Traumatic Stress Disorder (PTSD). Veterans typically have to fight for more benefits, but now veterans must fight to keep what we already have. The VA claims that it will not reduce any current ratings. However, given the history of VA “promises”, this statement is questionable at best. It is the VA’s regular practice to periodically reassess service-connected veterans who have not sought an increase. If a reassessment occurs, it may be done under the new guidelines and the risk of reduction is increased. This new rating schedule may affect every veteran past, present, and future.
Sleep apnea is both compensable for direct and secondary conditions. Sleep apnea is extremely debilitating and can be fatal. Sleep apnea symptoms include; excessive daytime sleepiness (hypersomnia), depression, anxiety, headaches, sexual dysfunction, high blood pressure, increased accidents, cardiac issues, loud snoring, gasping for air during sleep, morning headache, difficulty staying asleep (insomnia), inability to concentrate, irritability, snoring, restlessness while sleeping, waking up suddenly after gasping or choking, trouble concentrating, forgetfulness, crankiness, constant need to go pee at night, night sweats, as well as it can lead to a stroke. As a secondary condition, sleep apnea is commonly connected with PTSD and Traumatic Brain Injury (TBI,) two of the most common service disabilities from the GWOT (Global War on Terrorism) era. A veteran who requires the use of a CPAP (Continuous Positive Airway Pressure) machine is compensable at the 50% rating. Many veterans have undergone sleep studies that result in the veteran being required to use a CPAP machine to not only improve their daily life but is also lifesaving. A VA Office of Inspector General audit discovered sleep apnea as the most common respiratory disability for which veterans receive benefits.
The VA is proposing to eliminate the 50% threshold verbiage that currently states “the veteran requires the use of a breathing assistance device, such as a CPAP machine” which entitles the veteran to a 50% service connection. Removal of this verbiage will effectively eliminate any future applicants from obtaining the 50% rating for sleep apnea. The VA states “the basis for assignment of evaluation at all of these proposed levels will be the functional impairment caused by sleep apnea, not simply the method of treatment.” Also, the VA claims the “purpose of these changes is to update medical terminology, incorporate medical advances that have occurred since the last review, and provide well-defined criteria in accordance with actual clinical practice.” This is false! It’s all about the money as shown through the VA projected savings in the VA economic impact study released on January 27, 2022. The VA economic impact study “VALUE: VA” has determined that there are costs and transfer savings associated with this rulemaking. The total transfers savings is $15 billion from FY 2022-2026 and $57.1 billion over a 10-year period from FY 2022-2031. Most of that savings ($40 billion) is from the proposed sleep apnea rating changes and tinnitus removal ($15 billion). With the proposed changes, veterans could receive a 0 percent rating for asymptomatic sleep apnea, even if symptoms are fully treated by a CPAP machine or other treatment. Veterans can receive between 10% ($152.64) and 100% ($3,332.06) ratings for sleep apnea.
One question for the VA is if they even studied burn pits exposure to sleep apnea, which is unlikely given the history of the VA pushing back on burn pit exposure-related illnesses. Approximately 1.3 million veterans under Veterans Health Administration care had a sleep apnea diagnosis in 2019, a 44% increase since 2015, according to the Inspector General, which is not surprising given the GWOT era and commonly related illnesses.
The issue of tinnitus has exploded in the veteran community from the longevity of the wars in Iraq and Afghanistan along with faulty earplugs the government provided the service members from 3M. The new rules could treat ringing in the ears as a symptom of an underlying medical issue rather than as a stand-alone disability, which is shocking when considering this statement comes from a Department claiming to help and support veterans. The VA argues tinnitus “generally does not impact earning capacity beyond what is already contemplated at the compensable levels of hearing loss.” Yet, this cannot be farther from the truth.
Tinnitus is a diverse condition that manifests in many forms; it can be acute or chronic, tonal or pulsatile, constant or irregular. Over 90% of Veteran applicants are granted service connection for tinnitus (over 2 million veterans are service-connected for tinnitus) and are paid about $150 per month at the current 10% rating. The VA is proposing to eliminate the 10% rating for tinnitus and combine the symptoms of tinnitus with hearing loss and rate it under hearing loss. The impact and burden of tinnitus is relative to the individual patient’s experience. Tinnitus has negative consequences on one’s life that including economically and socially, even moderate cases can interfere with one’s daily life. Those suffering from tinnitus can experience many symptoms including distress, depression, anxiety, mood swings, sleep disturbances, irritability or frustration, poor concentration, and pain. The economic cost of tinnitus to an individual can be lost earnings, productivity, and health expenses that can cost up to $30,000 annually. The treatment available for tinnitus is minimal with no drug recommendations specifically for tinnitus. Whilst some of the currently available interventions are effective at improving quality of life and reducing tinnitus-associated psychological distress, most show little if any effect on the primary symptom of subjective tinnitus loudness. The issue is that the threshold for service connection for hearing loss is much more difficulty to achieve. The result of this change will make it extremely difficult for veterans to be compensated for tinnitus and the constant ringing in the ears.
Employment is essential to providing a sense of self-worth to our society. However, over 1/3 of those suffering from tinnitus say that the condition has negatively affected their work prospects. This is not only life-changing for the person in question, but also means that tinnitus has a huge economic impact.
The VA is also proposing to change the Rating Schedule for mental health conditions. After review, it seems that these changes may be beneficial to veterans, but we should all be wary of assuming any benefit from these changes just yet. The definition and interpretation of the new verbiage have yet to be played out. With an estimated savings of $45 billion over the next 10 years, it appears that veterans with mental health conditions could be paying the price. “Estimated impact: VA has determined that there are costs and transfers associated with this rulemaking. The total budgetary impact is $18.3 billion from FY 2022-2026 and $45 billion over a 10-year period from FY 2022-2031.”
The VA states those who currently receive compensation, or are under review for compensation, will not see the proposed changes affect them. However, it is unknown what the specifics are for these cases. If a veteran’s sleep apnea is cut from 50% (require the use of CPAP machine) to 0%, will the appeal still be based on the current criteria, not the proposed criteria? The VA is well known for not following its own guidelines, so it is with merit that veterans highly doubt any comments coming from the VA. At the same time, veterans who apply for benefits in the future will see a different set of standards applied to their cases which could result in significant financial ramifications. This is yet another glaring example of VA hypocrisy when it comes to disability compensation. The statement the VA will not impact current ratings is essentially stating to future veterans are too late to receive compensation. This begs the question what is the difference between a veteran requiring the use of a CPAP machine today versus one who requires the use next year, the answer is the VA trying to save money at the cost of the veteran.
The reasoning for these proposed changes is the VA states they are seeking to mirror current medical knowledge. If this is the case, where are the connections for burn pit exposure, service dogs, and a list of other conditions and medical studies demonstrating connections and treatments that the VA still does not cover or recognize? This proposal is deceitful to the veteran community and is being used under the guise to save money in the end. We see the VA again taking the same tactic of looking to cut costs at the expense of veterans. The VA has a history of inconsistency in its rating system with constant errors and inaccuracy in decision letters sent to veterans.
The bottom line indicates the VA is seeking to drastically reduce the ratings for tinnitus and sleep apnea while dangling the carrot of easier connections for mental health conditions. However, the VA has never had the reputation of making anything easier for veterans.
If you disagree with these proposed changes, please make sure your comments are known by 18 April 2022. Here is the link to leave your comments: https://bit.ly/3uJBZTD
Chad is the Director of the Veterans and Servicemembers’ Rights’ Clinic in New York and a Marine Corps Major in the reserves. He is a former prosecutor and defense attorney who serves as co-chair and committee member on numerous bar association committees, and an advisor for the Bob Feller Act of Valor Foundation. An avid martial artist and world record holder for fastest 1 mile pulling a 400lb chain, he competes to raise awareness and money for the Semper Fi Fund as a Community Athlete.