One of the most common Rating Decisions our office reviews involves Veterans who are granted service connection for both a respiratory condition and obstructive sleep apnea, only to discover that the VA assigned a single disability rating instead of separate evaluations.
This understandably causes confusion, especially when the VA acknowledges both conditions as service connected but lists only one percentage in the final decision.
The reason for this outcome is a technical VA regulation that treats certain respiratory disabilities differently than most other conditions.
While Veterans reasonably expect each service-connected disability to receive its own rating, VA regulations prohibit assigning separate evaluations for multiple respiratory conditions that fall within the same portion of the rating schedule. When this applies, VA must issue one rating that reflects the overall level of respiratory impairment rather than separate percentages.
Here the controlling regulation is 38 C.F.R. § 4.96(a), which provides that ratings assigned under certain respiratory diagnostic codes “will not be combined with each other.” These codes include conditions such as chronic obstructive pulmonary disease (COPD), sleep apnea, asthma, chronic bronchitis, emphysema, and other respiratory disorders rated under 38 C.F.R. § 4.97.
When Veterans read this language, the natural assumption is that “will not be combined” means the conditions should be rated separately. Under VA law, that interpretation is exactly backwards.
What the regulation actually requires is that VA may not assign separate evaluations for multiple respiratory conditions listed in § 4.96(a). In VA terminology, when disabilities are rated separately, those ratings are ordinarily combined using the Combined Ratings Table. For the respiratory conditions covered by this regulation, VA is prohibited from doing so.
Instead, VA must assign a single evaluation under the diagnostic code that reflects the predominant respiratory disability, with elevation to the next higher evaluation if the overall severity of the combined respiratory impairment warrants it.
To put this into practical terms, consider a Veteran who is service connected for both obstructive sleep apnea and COPD. The sleep apnea requires nightly use of a CPAP machine, which on its own would ordinarily support a 50 percent rating.
The COPD, however, is more severe based on pulmonary function testing and would warrant a 60 percent rating. Because both conditions fall within the respiratory diagnostic codes governed by § 4.96(a), VA is legally required to issue only one rating. VA must select the condition that represents the greater overall impairment—in this example, COPD—and assign the higher 60 percent evaluation. By law, VA cannot issue a separate rating for sleep apnea in this situation, even though it is service connected.
From an attorney’s perspective, the critical question is whether VA correctly identified the predominant disability, properly evaluated the medical evidence, and accurately assessed the overall severity of the respiratory condition. Too often, VA misapplies the regulation or fails to consider whether the combined impact of the conditions supports a higher evaluation. Moreover, despite the stated law, there exists cases where Veterans have been successful in appealing the intertwinement of these disabilities.
If you received a single rating for multiple respiratory disabilities, that does not automatically mean the VA decision is correct. These cases require careful legal review to ensure the regulation was properly applied and that the Veteran is receiving the maximum compensation allowed under the law.
By Matthew J. Brown, Esq. VA-accredited attorney and partner at Wolf & Brown Law Offices