Attorney urges Congress to end sleep apnea claims ‘abuse’

May 30, 2013

By Tom Philpott

In 2001, the year U.S. forces invaded Afghanistan, 983 veterans began to draw disability compensation from the Department of Veterans Affairs for sleep apnea, a disorder linked to obesity and characterized by pauses in breathing during sleep that can cause chronic drowsiness.

Last year, 25 times that number of veterans and military retirees (24,791) were added to VA compensation rolls for service-connected sleep apnea, raising the number of vets and retirees drawing apnea payments to 114,103, double the number VA reported just three years earlier.

VA compensation for sleep apnea now exceeds $1.2 billion annually under the most conservative of calculations. Michael T. Webster, a former naval aviator and family law attorney in Shalimar, Fla., calls this boom a scam and an offense to veterans who suffer from "real disabilities."

Webster seeks to shine a spotlight on what he sees as "widespread abuse" of the VA claims system, mostly by recent retirees. He began with a May 6 letter to his congressman, Rep. Jeff Miller (R-Fla.), who is chairman of the House Armed Services Committee.

"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," Webster wrote. "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 thereby qualifying for concurrent payment status."

A spokesman for Chairman Miller said: "These are obviously very serious allegations and the committee is looking into them to ensure that veterans benefits go only to those who have earned them."

VA data show 88 percent of veterans diagnosed with sleep apnea have a 50-percent disability rating. Thats because if a sleep study confirms apnea on active duty, or the condition can be linked back to time in service, and a CPAP (continuous positive airway pressure) machine is prescribed, then the current VA rating schedule requires a 50 percent disability rating.

Ironically, physicians who treat the disorder say that if a CPAP provides relief, vets no longer should be viewed as disabled, a nuance ignored by the Veterans Affairs Schedule for Rating Disabilities (VASRD).

"Many people who have sleep apnea and are on treatment are not disabled. I would say the majority," said Dr. Samuel Kuna, chief of sleep medicine at the Philadelphia VA Medical Center, in a phone interview.

That seems to support Websters argument that VA is compensating increasing numbers of veterans who arent disabled. Webster said he knows of retired Air Force pilots diagnosed with sleep apnea who have passed rigorous flight physicals to be able to fly commercial aircraft.

VAs Dr. Kuna stopped short of sharing his opinion on whether thousands of veterans he views as not disabled should still draw VA compensation.

"Im a clinician on the front line taking care of the patient. My focus is on managing that patients medical problem," Kuna said. "So I am not involved with their disability claim, other than providing information that they may need for their applications."

VA has been compensating for sleep apnea only since 1996 when VASRD ratings for respiratory diseases received a major overhaul. The ease with which a claimant with sleep apnea reaches the 50-percent threshold is significant for retirees. Ratings below 50 percent, for those who dont have a CPAP, have no relief from the ban on concurrent receipt of both retired pay and VA compensation. Retired pay is cut dollar-for-dollar by VA payments.

With a 50-percent rating, retirees boost monthly income by at least $810, more if they are married or have other dependents.

Webster said word has spread, particularly among careerists nearing retirement, that if they snore theyd be foolish not to request a sleep study to check for apnea. Such testing used to be done in a lab. More often today it is conducted at home using a headband or wristband device that collects medical data during sleep.

If there is cessation of airflow into the lungs for at least 10 seconds and at least five times an hour, mild sleep apnea is diagnosed, and a CPAP can be prescribed. Patients with severe apnea have 30 or more events per hour. Severe apnea, if not treated, can damage the heart or lead to respiratory failure or other injuries.

Kuna said he finds no unique association between sleep apnea and the rigors of service life except in cases of wounds or injuries to nasal passages. In those cases, surgery is the usual treatment rather than a CPAP.

"The greatest risk factor for sleep apnea is obesity," Kuna said. "And we have had an epidemic of obesity over the last two decades, at least in the United StatesWe do see a lot of young veterans who are overweight a year or two after they have left the service."

A sleep study is needed to diagnose apnea. If done on active duty, the condition is service-connected and usually compensable. For vets and retirees diagnosed after service, establishing a "medical nexus" to service time is more difficult but still possible. Claimants provide statements from spouses or colleagues that they snored heavily in service, had difficulty sleeping and point to medical records showing fatigue or trouble sleeping.

Tom Murphy, compensation services director for VA, said compensation claims for sleep apnea or any other medical condition are "demand driven" and not something VA would want to discourage. Veterans today, he said, simply "are more aware of what their benefits are and are taking advantage of it."

Verna Jones, director of American Legions veteransaffairs and rehabilitation division, called Websters letter "hurtful" to vets with sleep apnea who only in recent years have discovered why they snored so loud and were chronically tired. She said any surge in claims is a credit to VA, the Legion and to other veteran service organizations that are briefing veterans more thoroughly "on all types of disabilities they can apply for."

Webster, however, said its a slap at veterans "truly disabled, "like his late father who, as a 21-year-old Marine, lost an arm at the shoulder from gun mount explosion at sea. His dad later married, raised seven children and could fix anything as long one of his kids helped with a tool or nail. Carved on his tombstone, said Webster, is "HHT" for "Here, hold this."

"When you grow up like that, seeing a one-armed individual not giving into the disability,[and] then to see people with no disability whatsoever sucking huge amounts of money out of federal coffers, while our airplanes are being grounded and ships are not putting to seait pissed me off. Somebody needs to blow the whistle. By God, if somebody is disabled, compensate them. But this is a sham and it rankles me to the core."

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