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Sleep Apnea Claims

In this episode of CCK Live, our attorneys discuss VA claims for sleep apnea. There are several ways to service connect sleep apnea. Tune in to find out which approach you should take and other tips for a succesful VA sleep apnea claim. Read the full blog post here. 

  1. What is sleep apnea? (obstructive vs. central vs. complex sleep apnea)
  2. Symptoms of sleep apnea
  3. Direct service connection of sleep apnea (Potential causes of sleep apnea)
  4. Secondary service connection of sleep apnea
  5. Secondary service connection by aggravation of sleep apnea
  6. Obesity as an intermediate step to sleep apnea service connection
  7. Sleep apnea C&P Exams (VA sleep study, VA sleep apnea test)
  8. VA reexaminations for sleep apnea
  9. Tips for sleep apnea VA exams
  10. VA disability ratings for sleep apnea
  11. VA unemployability (TDIU) for sleep apnea
  12. Common VA errors on sleep apnea claims
  13. Viewer Question: Conditions secondary to sleep apnea
  14. Things to remember for your VA sleep apnea claim and exam

Video Transcription.

Christian: Good afternoon and welcome to another edition of Chisholm Chisholm and Kilpatrick’s Facebook Live. My name is Christian McTarnaghan and today I’m here with Lindy Nash and Courtney Ross. We’re going to talk about sleep apnea. Why don’t we just get started with the basics, start from step one. Lindy, what is sleep apnea?

Lindy: Sure. So sleep apnea is a really serious sleep condition that actually stops your breathing repeatedly throughout the night. It’s really scary and it can be a really serious condition and it causes oxygen to not get to your brain and that can obviously have serious side effects. So there’s actually three different types of sleep apnea and they’re all rated at the same under the diagnostic code, which we’ll get into later. But the three different types are obstructive sleep apnea, that’s probably the most common one and probably the one that we see most often. Obstructive sleep apnea, you can think of it in a mechanical sense where actually the soft tissue in your throat collapses while you’re sleeping which creates a blockage in your airway, so that’s the first type. Then the second one is central sleep apnea and that is more of a kind of communication issue between the muscles that allow you to breathe and your brain. So there’s some issue there between your brain and the muscles that help you breathe that is not working. Then the third one is called mixed or central sleep apnea and that is actually a mixture of both. So an example would be maybe you start off with obstructive sleep apnea, maybe you’re given a CPAP machine and that CPAP machine actually causes communication issues between your brain and the muscles that allow you to breathe. Therefore, you have both of those types causing this third type of sleep apnea.

Christian: Before we move on, do you want to maybe just explain to some people that might not know what a CPAP machine is?

Lindy: Yes.

Christian: We use a lot of acronyms here, so sometimes you have to explain.

Lindy: You know I’m blanking on what it actually stands for.

Christian: Yes. I have no idea what it stands for.

Lindy: Okay.

Courtney: I think it’s actually —

Christian: Courtney, I didn’t know what it stands for.

Lindy: Wait, we actually–

Christian: Wait Courtney did you know what it stands for?

Courtney: Yes. It’s in the rating criteria.

Christian: Oh, perfect.

Courtney: All right, good.

Lindy: I know because we have it with us, it’s called–

Christian: All right. So, Courtney will tell us what it means and then Lindy will explain what it does.

Lindy: Right.

Courtney: It’s a Continuous Airway Pressure machine.

Lindy: Perfect. CPAP machine, it basically is a mask that you put over your face and you sleep with it at night. That allows you to keep breathing throughout the night and to sleep better with this condition. That is a frequent thing that is often prescribed or given to someone was sleep apnea.

Christian: That’s part of the problem with veterans. There’s so many acronyms–

Lindy: Yes.

Christian: –to keep track of them all. So, you had mentioned that the– what physically happens is you sort of have trouble breathing–

Lindy: Yes.

Christian: –while you’re sleeping. Are there any other symptoms that you can think of, Courtney, off the top of your head of any of these different types of sleep apneas?

Courtney: Yes. There’s a number of symptoms that might be signs that someone suffering from sleep apnea. Loud or frequent snoring, while a person is sleeping, is a sign. As Lindy alluded two episodes where someone stops breathing in the middle of the night or is having difficulty breathing, episodes of choking in the middle of the night or gasping for air. Headaches in the morning can be another sign of sleep apnea. Excessive daytime drowsiness or difficulty really focusing on things during the day because of the drowsiness are sign or potential symptoms of sleep apnea. Irritability actually due to that excessive drowsiness could also be a sign that you’re suffering from sleep apnea.

Christian: Does the excessive drowsiness have a special name?

Courtney: I think it’s hypersomnolence if I’m pronouncing it correctly.

Christian: That’s also in the rating criteria, right?

Courtney: Yes.

Christian: That’s just defining that word for people. I know I didn’t know that one when I first started in this practice what that meant. Okay, so we’ve talked about what sleep apnea is. We’ve talked about some of the signs and symptoms and we’re going to come back a little bit to that later. But Courtney, why don’t you let us know some of the causes, the potential causes of sleep apnea?

Courtney: Yes. Again, there’s a variety of different things that can cause sleep apnea, I’ll give you a few examples. A deviated septum which is actually damage to the cartilage that separates your nose could be a potential cause. Any damage to your vocal cords could be a potential cause. Really, any damage that you might suffer to your nose or your throat, your chest or your face that causes damage to your airway which restricts the airflow could potentially lead you to the development of sleep apnea.

Christian: Okay. Do you have anything to add, Lindy, before we move on?

Lindy: No, that sounded good.

Christian: We’re talking a lot about what could cause sleep apnea, potential symptoms of sleep apnea. I think that and we’re going to go talk about the medical part of this whole process a little bit later. But something I just want to know that I think all veterans or anyone that’s watching this should keep in mind, these are only potential, general, maybe, right? In order to show that those symptoms are actually part of your sleep apnea condition or a sleep apnea condition, you’re going to typically need some medical evidence and medical expert to sort of provide that information. Snoring is typically an indication of sleep apnea that I see in a lot. A lot of the cases that I’ve worked on but just because you’ve snored in-service and just because you snore now, that doesn’t necessarily automatically mean that you’re going to get granted service connection for sleep apnea, even if you have a diagnosis. I just wanted to make that point clear before we move on. We talked about some of the causes in that would be direct service connection, right? Something in service like breaking your nose, which results in deviated septum that then a medical professional says has caused your sleep apnea. That’s one way, that’s called direct service connection. But Lindy, there’s a whole other way to get service connected, right? What’s that called?

Lindy: Yes. That’s known as secondary service connection.

Christian: Okay.

Lindy: Secondary Service Connection, basically, the way I think of it is you already have a service-connected condition, say you’re already service connected for PTSD. VA has acknowledged that your PTSD is due to service. However, we see frequently that a diagnosis such as PTSD can actually cause sleep apnea, that is another way to get service connected. You have one service-connected disease or disability that leads to sleep apnea. You can get service connected through that secondary way.

Christian: Secondary just really means that one condition, at least in the example that you gave, caused another condition, right?

Lindy: Yes. Definitely and that can happen in many different scenarios, not just with PTSD, but I believe Parkinson’s can also cause sleep apnea. So maybe you were exposed to agent orange in service and you were granted service connection for Parkinson’s disease and that led to sleep apnea. That’s another one, maybe allergic rhinitis, you know certain respiratory conditions, anything along those lines. If you’re already service connected for that and you have a diagnosis of sleep apnea, it would be great to get an opinion saying that one caused the other.

Christian: Okay. All right. One way to get Secondary Service Connection is if one disability causes another but there’s a second way, right Courtney?

Courtney: Yes. You can also be service connected for sleep apnea through what we call aggravation. I’ll give two examples here. One way to do it is if you actually had sleep apnea prior to entering service. You have documented evidence that you had a diagnosis of the condition. Maybe before it wasn’t as severe, so you didn’t require the use of a CPAP machine prior to entering service. However, after your time in service, maybe you were exposed to something or like you give the example before where you had an injury to your nose. Now after service, you do require the use of a CPAP machine. So, you… What you would want to show there is essentially that while you have the condition prior to service, your time in service aggravated that condition and that’s another avenue to be able to get service connection. Along the same lines, you can also get service connection if an already service-connected disability aggravates the sleep apnea. So for example, Lindy mentioned PTSD before, that’s a condition that’s frequently known to aggravate somebody sleep apnea, maybe the condition didn’t cause the development of sleep apnea, but it makes it worse and so service connection can also be warranted in that circumstance.

Christian: Another issue that we see with sleep apnea a lot is obesity as an intermediary step. This is sort of a third additional way that maybe sleep apnea can get related to service such that a veteran could get service connection for it. Do you want to talk about that a little bit?

Lindy: Yes, definitely. Actually, recently, within the last few years, VA came out and issued an opinion from their Office of General Counsel that said disability was not– oh my goodness, excuse me. Obesity was not a disability that you could get benefits for. However, obesity could be seen as an intermediate step. What that means and I’ll give another example, say you have PTSD or service connected for PTSD and certain medication that you’re on causes you to gain weight. Maybe one of the side effects of this certain type of medication you’re on, causes you to become obese and then you develop sleep apnea. Because of your PTSD which caused obesity, now you have sleep apnea. Therefore, obesity can work in that way where it’s the intermediate step from one service connected condition to sleep apnea.

Christian: Because there wouldn’t be a direct connection between the post-traumatic stress disorder and the sleep apnea if not for the medication which caused weight gain, which then caused the obstructive sleep apnea.

Lindy: Yes, exactly. They’re all linked in a chain and as long as they are chained together like that, then that does work with obesity.

Christian: All right. We’ve been talking a lot about causes, what can happen to you in service, how it might be related to your service. But another big part of this that I alluded to before, is how VA is going to get you in examination in cases like this. Is there any typical examination that a veteran might get or one that they might expects to get, if they are claiming service connection for obstructive sleep apnea, Courtney?

Courtney: Yes. VA actually requires a sleep study to be done that provides a diagnosis of sleep apnea in order to grant benefits for that condition. You may have a prior diagnosis prior to filing a claim for this condition, but if the diagnosis doesn’t, didn’t come from a sleep study. VA is unlikely to accept that diagnosis and still will require you to undergo a sleep study to confirm it.

Christian: Okay. Excuse me. If you have your initial sleep study, you are diagnosed with obstructive sleep apnea. Let’s say hypothetically you get service connected for it. I know that a lot of veterans that I worked with are concerned about reexaminations. Do you maybe want to talk a little bit about the examination process with this specific disability, Lindy?

Lindy: Sure. It depends, but usually they will ask for another examination to make sure that you still have sleep apnea/that it’s still at a severity that it once was. Because unfortunately, reductions are possible amongst many different disabilities that you’re claiming benefits for. So if you are using the CPAP machine and then you attend another examination and they find that for some reason your sleep apnea is not as severe as it once was, you don’t need the CPAP anymore, a reduction as possible. Those reexaminations do happen. However, if you’ve been service connected for something for, I believe it’s 10 years, you no longer have to attend examinations, so that is a good thing.

Christian: We’ve been talking about sort of examinations in the abstract. Do you have any real-world advice for veterans that might be watching this that are going to go to an exam or something like that, then maybe how they should conduct to the exam?

Courtney: Yes. I think it would be completely honest with your examiner. Don’t downplay any of your symptoms that are resulting from your sleep apnea. The examiner– assume that the examiner is observing everything that you’re doing and writing down all the comments that you’re making. Just be as honest as possible about the severity of your symptoms so that we– the examination will be as accurate as possible in terms of actually capturing how severe your condition is. I’d also add that, we just said that the sleep study is required to actually diagnose sleep apnea. VA has a duty to assist veterans in their claims that they file with the VA. If you file a claim with VA and they’re not giving you the VA examination of the sleep study, make sure you’re asking them to do so, because that’s part of their duty to assist and like we said, you do need that sleep study to give you the diagnosis.

Christian: I think we’ve had other talks on this particular issue, but just to hit the broad strokes. They’re required to assist, but they don’t have to get an examination in every case, right?

Courtney: Yes.

Christian: There’s this three-part test which is a lot what hear a lot is, to determine and I know that we’ve had talks whether an examination is necessary. There’s the in-service occurrence, which we’ve talked about a little bit, we’ll just continue going with the deviated septum example. There’s a current diagnosis which would have to be done by sleeping study or a VA sleep study or a private sleep study. Then there needs to be some indication that the in-service event the deviated septum is what caused the obstructive sleep apnea. An indication isn’t proof, right? That’s different than medical certainty or anything like that, or at least likely than not more likely than not. Just keep that in mind when you’re working on your claim, to try to show as best as you can to your ability by yourself or getting evidence that those three elements are met.

Courtney: Yes, that’s a really good point. If you are going to ask you for that exam, try to outline what you can to meet those kind of three things and just you know.

Christian: Yes. And that might avoid one and maybe not getting a rating decision that denies it for lack of a current annexes or opinion is what they’re going to refer to it as and then doesn’t actually trigger that to reduce it so, it’s something to keep in mind.

Courtney: Yes. Absolutely.

Christian: Another thing I want to add to the best practices, go to your examination. I get a lot of the veterans that I work with, a lot of the veterans that I represent are concerned about going to reexaminations. I think it’s a great practice to go to your examinations. Also don’t forget and like Courtney was talking about this little– this isn’t your treating physician, so be honest, but just remember that you need to help them, figure out what’s going on with you because they’re supposed to look at the file, but they may not know you, as well as your private treating physician.

Courtney: Yes.

Lindy: I would just to add on to what Christian said, if you are at this exam, and if you think that your Parkinson’s disease is causing your sleep apnea, then say that. Because like Christian said, don’t expect VA to go through the record and try to look through every single avenue to get your service connected. Although that would be great and sometimes they do that, oftentimes, they don’t. Speak up and tell them if you think your PTSD caused your sleep apnea or your obesity is from your PTSD, and that’s why you have sleep apnea, you know try to give them some help.

Christian: Yes. And that doesn’t only need to be in the context of the examination, feel free to write a statement saying all the things that Lindy, if they’re true of course, explaining how you think your sleep apnea is related to service, that could also be helpful in helping VA get the decision right.

Courtney: Yes. I’ll just add to Christian’s point about going to the exam, I think that is a really important point. If you do skip your exam and don’t attend it, you will receive a denial from VA for that reason, usually that reason alone. Just to really highlight the importance of attending.

Lindy: If you can’t make it, just let them know. If there’s a scheduling issue or something comes up, just call and they’ll reschedule it for you, no problem.

Christian: If you’re frustrated with what happened at the exam, let VA know about it in writing as well. Okay, we’ve talked a lot about how to get service connected for sleep apnea, what it is, what might cause it. Now, let’s get to the rating. Lindy, how is sleep apnea rated?

Lindy: Sure. It’s broken down into 100%, 50%, 30% and zero. You can check out the diagnostic code yourself, it’s under 3.17, I believe, 6847 diagnostic code. It’s titled Sleep Apnea Syndromes and again it lists all three of those types of sleep apnea that I mentioned but they’re all rated the same way. It really doesn’t matter which type you have, you’ll get the same rating no matter what. The first one, 100%, that’s the most severe and corresponds with the highest compensation benefit, I will just read it to you. Chronic respiratory failure with carbon dioxide retention. The need for a Tracheostomy or Cor Pulmonale. So cor pulmunale is the enlargement or failure of the right side of the heart due to lung disease.

So, if you have any of those things, if they’re noted on exam, that’s great or if you have private treatment notes that suggest any of those things, submit them and you will hopefully get that 100% rating. The next 50%, we see this all the time. If you use a CPAP machine, then you’re entitled to a 50% rating, which is huge. If you use a CPAP, again submit treatment notes, statement, anything from your doctor showing that you need that. Hopefully, that’ll be picked up on an exam or maybe VA will actually tell you to get one. But that doesn’t title you to 50%. 30% is when you experience persistent daytime hypersomnolence which we talked about earlier, which is basically a fancy word for daytime sleepiness or fatigue. And then zero percent is a non-compensable rating, so you won’t get any compensation for that. But they do acknowledge that you have a documented sleep disorder. Those are kind of the four types of percentages.

Christian: What are the benefits for being service connected but out of zero, is you can always apply for an increased rating. Do you think that your symptoms have gotten worse or disagree with that initial service connection and non-compensable rating as well.  0, 30, 50 and 100, schedular 100. What if you were sleep apnea prevents you from working, Courtney? What can a veteran do in that situation?

Courtney: Yes. Sleep apnea can certainly have an effect on a person’s ability to work we talked about before some of the symptoms, obviously, including interrupted sleep due to the interrupted breathing that happens to a person during their night sleep which results that excessive daytime fatigue possibly causing, again, difficulty concentrating. All of those things can really impact a person’s ability to get up and go to work every day and be able to complete work, tasks that are required of them at employment. If your sleep apnea is impacting your ability to work, you can apply for a separate, or I should say, a benefit that’s total disability based upon your unemployability. If you are granted what we call TDIU, you’re actually granted at the 100% rate. It’s another way to get to total disability or that 100% rate, which means you’re also compensated at 100% rate for the monthly payments that you receive from VA.

Christian: So, does the veteran have to have what Lindy was talking about chronic respiratory failure in order to get 100% under IU.

Courtney: No. Veteran can be at that 50% rating, meaning they use a CPAP machine for their sleep apnea. But the sleep apnea prevents them from working and VA acknowledges that this and grants them the total disability based on their unemployability and that would give them 100% rating. It’s a different route to take to get 100% rating separate from having to establish that chronic respiratory failure.

Christian: This is another situation where I think this is the name of the game, you should really be honest with VA about how your symptoms are affecting you in your life, in your work, so you can get the rating that you deserve. I think we’ve talked about this a little bit, but in your practice, Lindy, what are some common errors that you might see that VA commits, maybe with specifically with sleep apnea in lined?

Lindy: Sure. Something that I see frequently is that VA doesn’t often complete the whole picture. So, say, you go to a VA exam, and they’ll issue an unfavorable opinion and unfavorable exam saying that, “Oh no, you know, you don’t have sleep apnea from service, you have it because you’re obese.” It’s like, “Okay, but what is that obesity from?” You know you’re service connected for PTSD, and you take medication that causes weight gain, or your service connected for a back condition, and you can’t work out and your knees are also service connected which means you’re not mobile and those things cause obesity, which then caused your sleep apnea. I say that VA can often drop the ball and leave it there. Whereas they should really complete the picture and say, “Oh, you are obese, which causes your sleep apnea, but that is from another service-connected condition.” I would say that VA doesn’t often see the whole picture.

Christian: Sure. That’s something you can do advocating for yourself as a veteran, letting VA know when you think that something might be– if it’s caused by your obesity and they’re not sort of thinking about the whole picture. That’s something that you can raise, that’s something that you can let them know after you get the examination and or after you’re maybe you get that denial. Anything else that you can think of, Courtney?

Courtney: I think along the same lines of them not completing the entire picture, is they don’t always consider when you raise secondary service-connected theories. Maybe you applied for sleep apnea directly but Lindy gave the example for maybe you go to the VA examination and you tell the examiner that you also think you’re already service-connected Parkinson’s is affecting it as well. What will likely happen if you applied for direct service connection is VA will just issue a decision and they won’t even acknowledge the comment that you made about you’re already service-connected disability having some kind of impact on the sleep apnea. Even though the record now is raising this alternative theory of service connection. I think that we often see that, it’s along the same lines of them not really completing the picture and considering everything that the veteran has said. To your point, advocate for yourself and make sure that you’re being explicit in raising it directly to VA if there’s some other alternative theory of service connection that you want them to consider.

Christian: We have a question here, it’s going to take a minute from Samantha and she asked, “What are some common secondary conditions from sleep apnea?”

Courtney: Do you mean condi–

Lindy: Yes. From sleep apnea or causing sleep apnea? Causing sleep apnea, okay. We touched on a couple but I think of Parkinson’s, we’ve had some situations where diabetes, right? Causes sleep apnea, any type of respiratory condition, allergic rhinitis or maybe some lung condition that you have.

Courtney: Yes. I think sinusitis.

Lindy: Yes. Sinusitis.

Courtney: I’ve seen asthma or COPD. PTSD, we’ve already talked about are some of the more common ones I’ve seen where sleep apnea has resulted from those conditions.

Christian: Yes. Also, if you have medical evidence to suggest that anything that you have is unfortunately causing obstructive sleep apnea and that other thing is somehow related to service that relates back to the sort of secondary service connection concept and it’d be helpful to get if your doctor is saying that to get some written statement suggesting that that’s true. There’s really no limit, there’s not like a list of it can only be. These are just common things that we’ve seen in our practice but it could be anything.

Lindy: There’s a follow-up question.

Christian: Yes. And so now, we’re going to do it the other way which is, can obstructive sleep apnea potentially commonly cause anything else? And that’s what I was thinking of when I was reading that question. And so we’re going to hit it both ways. The headaches is one suggestion or one thing that Courtney commented on earlier that actually sparked this in my mind. I personally have never seen it but let’s just say, hypothetically, you have obstructive sleep apnea and you have really severe headaches, right? There is a migraine and just sort of a general headaches diagnostic code. I think, I don’t know, it might be called– but anyway, all types of different headaches are rated under it. If you have obstructive sleep apnea and you have such severe headaches or just headaches that would get you a compensable rating under that diagnostic code, then you could get a Secondary Service Connection for the headaches condition.

Lindy: Definitely.

Courtney: Yes. I think to your point too, again if you can get medical evidence showing that other conditions or you have a treating doctor that’s able to link other conditions to your sleep apnea, I don’t think there’s any exhaustive list of conditions that might develop secondary to sleep apnea. It’s really about getting that medical evidence that shows to VA that the two are linked.

Lindy: Yes. I think maybe even site conditions could come from sleep apnea because oftentimes, it’s not easy to sleep with a CPAP machine and it takes a while to get used to. That could disrupt your sleep even more which could cause more fatigue and lack of concentration and it may start to have a mental toll. That could be an argument you could make.

Christian: Yes, absolutely. Like we said, there’s no defined list of things that it can cause. If you can get medical evidence or you have medical evidence that your sleep apnea is causing something else or something is causing your sleep apnea and that can be related to service. That’s going to put you in a good position to potentially have a successful claim. I think that we’ve talked about this a little bit throughout, but I always think a good parting message would just be things for veterans or people watching Facebook Live to keep in mind when they’re applying for service connection for sleep apnea. Do you have any parting thoughts, Lindy?

Lindy: Sure. Definitely submit any type of lay statement or if you have buddy statements from anyone who you are in service with, maybe your roommate or someone you shared a living quarter with, saw you get, I don’t know, punched in the face and then from there you are snoring really loudly and he even witnessed you stop breathing during the night. Any type of statement like that to support your in-service occurrence is great. Any private treatment notes like we been talking about this whole time, submit those. Be forthright and honest and tell them everything that you’re experiencing. It’s not the time to hold back and let them know all the symptoms that you have going on.

Courtney: Yes. I’ll just add, we talked about a lot of different avenues for service connection today. Direct Service Connection, Secondary Service Connection, aggravation of the previous diagnosis prior to service, using obesity as an intermediate step. Really consider all of these possible avenues when you’re going to file the claim and be your own advocate and raise them directly to VA if you think it could be multiple options here. Don’t just assume that VA will look at it and consider Direct Service Connection and Secondary Service Connection.

Christian: And going off of that, when you have your exam or if you have an exam or if you get a decision that you don’t necessarily agree with or there’s some sort of mistake in the exam, write to VA and point it out. VA has to file a lot of claims, look through a lot of claims, it’s really helpful to be explicit. Don’t assume that the error is going to get caught and sometimes those things can be incredibly important to the claim. A date in service saying this such and such happened in service but that transpose and it becomes something that happened two years after service because of a typo. That’s going to have an impact on your claim. Write VA, just shoot them a note and let them know that there’s a problem and hopefully the error can get rectified especially when they’re duty came again.

Lindy: Definitely.

Christian: Well, I think that’s all that we have for you guys today. Thank you very much for the question, Samantha, I hope we answered it. Thank you very much for tuning into Facebook Live from CCK.

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