Th veteran sought a higher rating for several service-connected disabilities, including central sleep apnea (CSA), chronic bronchitis, asthma, chronic obstructive pulmonary disease (COPD), and allergic bronchospasms. The Board assigned a rating of 50% and no higher for all of the conditions combined.
In doing so, the BVA made three primary - and common - errors.
First, the BVA cannot invoke the rule in 38 C.F.R. §4.96a against the pyramiding of respiratory conditions unless all the conditions are respiratory in nature. Central Sleep Apnea, while it manifests in symptoms affecting the sleep breathing functions of the body, is not a respiratory condition. It is a neurological condition, and therefore in the opinion of this firm, is not subject to the rule against pyramiding ratings of respiratory conditions under 38 C.F.R. §4.96a.
Second, if the BVA is going to invoke the rule in 38 CFR 4.96a against the pyramiding of respiratory conditions, it must explain which of the respiratory conditions predominates, and use that as a basis.
Third, in any case where a veteran has sought an increased rating, and there are symptoms of a condition not envisioned by the schedular disability compensation ratings tables, the BVA has a duty to consider whether an extra-schedular rating is appropriate.
The BVA denied this veteran separate ratings for Sleep Apnea and COPD.
On remand, the Court of Appeals for Veterans Claims made it clear the BVA failed to explain which of the 2 conditions was predominant for rating purposes. Because the veteran's central sleep apnea is a neurologic condition, the BVA also failed to consider what diagnostic code should be assigned to rate his sleep apnea.
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Link to the BVA Decision on CAVC Website.
Link to the Joint Motion to Remand the CAVC Website.
OGC Attorney: Abigail J. Schopick
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: Deborah W. Singleton
Regional Office: Boise, Idaho
Vets’ Rep at BVA: American Legion
Date of BVA Decision: January 29, 2016
Date of CAVC Judgment on Remand: