Citation Nr: 18151495 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-15 111 DATE: November 20, 2018 ORDER Entitlement to an increased rating for sleep apnea is granted. FINDING OF FACT The Veteran requires the use of a CPAP machine when sleeping. CONCLUSION OF LAW The criteria for a 50 percent rating for sleep apnea have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.97, Diagnostic Code 6847 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an increased rating for sleep apnea. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran’s disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). See also 38 C.F.R. § 4.2 (2017). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran’s sleep apnea has been evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6847, the rating criteria for sleep apnea syndromes, which includes obstructive, central, and mixed sleep apneas. Under Diagnostic Code 6847, a non-compensable rating is assigned when sleep apnea is asymptomatic but with documented sleep disorder breathing. A 30 percent rating is assigned when a veteran exhibits persistent day-time hypersomnolence. A 50 percent rating is warranted for sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. A 100 percent rating is assigned when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; a tracheostomy is required. 38 C.F.R. § 4.97, Code 6847. Here, the Veteran has been assigned a non-compensable rating and contends that his sleep apnea condition warrants a compensable rating. A review of the record shows that the Veteran received a sleep study in July 2013 and was diagnosed with mild obstructive sleep apnea. The sleep specialist recommended a CPAP machine with a heated humidifier. Shortly thereafter, the Veteran was approved for the CPAP and received the machine in August 2013. In an October 2014 sleep apnea Disability Benefits Questionnaire (DBQ), the examiner noted that the Veteran has a diagnosis of sleep apnea, but that the Veteran was presently asymptomatic. The examiner further noted that the Veteran had no signs or symptoms attributable to sleep apnea, nor did he require medication to control his sleep disorder, the use of a breathing assistance device, or the use of a CPAP machine. The examiner diagnosed the Veteran with positional sleep apnea and found that the Veteran did not require the use of a CPAP machine. In evaluating the evidence, it is clear that the Veteran has a diagnosis of sleep apnea; however, the question at issue is whether the Veteran’s symptoms are asymptomatic and/or whether the use of a CPAP machine is warranted? (Continued on the next page)   In the Veteran’s case, the Board finds that a rating of 50 percent, but no higher, is warranted. In so finding, the Board notes that the Veteran was given a sleep study resulting in a diagnosis of mild obstructive sleep apnea with a recommended CPAP for treatment. While the October 2014 examiner found that the Veteran’s sleep apnea was asymptomatic, the Board finds that this conclusion is consistent with the Veteran’s sleep apnea diagnosis and resulting treatment. The actual purpose of a CPAP machine is to prevent sleep apnea symptoms from occurring. The Board recognizes the Veteran’s testimony in that he uses his CPAP machine every night; otherwise, he cannot get through the day without being extremely drowsy with the need for caffeine. Therefore, it would be plausible that the Veteran would be asymptomatic one year later after having used the CPAP nightly. Based on the above, the Board finds the preponderance of the evidence weighs in favor of the claim. The evidence shows that the Veteran has a diagnosis of sleep apnea that requires the use of a CPAP machine. Therefore, the claim is granted, and the Veteran is entitled to a 50 percent rating, but no higher, for the entire period on appeal. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel