The law today
How VA actually rates sleep apnea right now
38 CFR 4.97, Diagnostic Code 6847. Four levels.
- 0 percent — asymptomatic, but with documented sleep disordered breathing. No symptoms,
but a sleep study on record showing the breathing problem.
- 30 percent — persistent day-time hypersomnolence. In plain words: you are sleepy
during the day, and it keeps happening.
- 50 percent — requires use of a breathing assistance device such as a CPAP machine.
CPAP means continuous positive airway pressure, the mask and air pump you wear at night.
The standard is that you need it — not that it failed you.
- 100 percent — chronic respiratory failure with carbon dioxide retention, or cor
pulmonale (the right side of the heart failing because of a lung condition), or requires a
tracheostomy (a surgical opening in the windpipe to breathe).
If a doctor prescribed the machine and you use it, that is the 50 percent criterion as written
today. Do not talk yourself out of filing because of a rule that does not exist.
✅ This is the rule your claim is decided under.
The 2022 proposal
What VA said it wanted to change
Proposed only. I am describing VA's stated intent, not quoting a regulation —
because VA's proposed rating table for this code is not published in full on any official source
I can reach.
- The proposal would shift the focus from whether you need a CPAP to how much impairment
is left after treatment.
- It laid out four levels: 0, 10, 50 and 100 percent. At 0 percent, a veteran is
asymptomatic with or without treatment. At 10 percent, treatment gives incomplete relief.
- VA said it would assign 50 percent only where treatment is either ineffective, or the
veteran is unable to use the prescribed treatment because of comorbid conditions — other medical
conditions he also has.
- VA said it would assign 100 percent only where that is so and there is
end-organ damage.
- There is no 30 percent level in that structure. The 30 percent for day-time
sleepiness exists today only because the proposal was never adopted.
On "comorbid conditions." VA proposed a note defining it: conditions that, in the opinion
of a qualified medical provider, directly impede or prevent the use of a recognized treatment
normally shown to be effective. Simply disliking the mask would not be enough under that
language. On "end-organ damage" — VA never defined it in the proposal. You cannot measure
yourself against a term VA did not define, so do not try.
The document: VA Notice of Proposed Rulemaking, "Schedule for Rating Disabilities—Ear, Nose,
Throat, and Audiology Disabilities; Special Provisions Regarding Evaluation of Respiratory
Conditions; Schedule for Rating Disabilities—Respiratory System," RIN 2900-AQ72, 87 FR 8474
(15 February 2022), sleep apnea discussed at pages 8478-79.
Read it in the Federal Register.
✅ A proposal is a question, not a rule.
Where it stands
Four and a half years, no final rule
- Proposed 15 February 2022. The public comment window closed 18 April 2022.
- VA last listed this rulemaking at Final Rule Stage in the October 2024 Unified Agenda,
with a projected final action of August 2025 that passed without a rule.
- As of September 2026, no final rule. The regulation is unchanged.
The comment window is closed, so here is the next avenue. If VA ever finalizes this, the
final rule publishes in the Federal Register with its own effective date, and that document will
say who it applies to and when. Watch for it there, not on social media, and not from anybody
charging you for the news.
✅ Until it publishes, it is not real.
Your protection
A rule change does not just take your rating away
This is the part nobody tells you, and it is the reason not to panic.
38 CFR 3.951(a). When VA revises the rating schedule, an evaluation you already hold
cannot be reduced unless medical evidence shows your disability has actually improved. A new
table, by itself, is not evidence that you got better.
38 CFR 3.951(b). An evaluation continuously in effect for 20 years or more cannot
be reduced below that level, absent fraud.
So if you are sitting at 50 percent today because you use a CPAP, a future rule does not erase
it on its own. Keep your rating decision letter. Keep your sleep study. Keep the prescription
for the machine. Those papers are what prove where you started.
✅ Hold your paperwork. It is your proof.
The money side
If a new rule would ever help you, do not sit on it
An increase under a changed rule is not automatic, and the back pay is capped.
- Under 38 CFR 3.114(a), an award based on a liberalizing change — a change that helps
veterans — cannot take effect any earlier than the date that change itself takes effect.
- If you ask VA for review more than one year after the change takes effect, VA can pay
you only one year back from the date of your request.
Plain version: waiting costs you months of money you will never get back. If any final rule
publishes and it would rate you higher, file the request right away.
38 CFR 3.114 is here.
And today, while none of this is law: if you have symptoms and no claim on file, file under the
current criteria. A rating you already hold is worth more than a rule you are waiting on. Bring
your spouse or whoever in the Family handles the paperwork — this is easier with two sets of eyes.
✅ File on the rule that exists.