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How to WIN Your Sleep Apnea VA Disability Claim

How to WIN Your Sleep Apnea VA Disability Claim

Video Transcription

Jenna Zellmer: Good afternoon and welcome to CCK Live.  My name is Jenna Zellmer and joining me today are Kevin Medeiros and Bethany Cooke.  All three of us represent veterans in their pursuit of VA disability benefits at the agency and at the court levels.

And in today’s episode, we will be explaining how to win your VA sleep apnea claim.  So, Bethany, why don’t you kick us off by just giving a little bit of background about what exactly is sleep apnea?

Bethany Cooke: Sure.  So, sleep apnea is a potentially serious sleep disorder, in which a person’s breathing is repeatedly interrupted during the course of the night.  So, there are three different types of sleep apnea, three main types including the most common, which is obstructive sleep apnea, which occurs when the throat muscles intermittently relax and block your airway during sleep.  And then two less common types of sleep apnea are central sleep apnea and complex or mixed sleep apnea—sleep apnea syndrome.

So central sleep apnea occurs when your brain doesn’t send proper signals to the muscles that control your breathing, whereas complex mixed sleep apnea syndrome occurs when someone has both obstructive sleep apnea and central sleep apnea.  All three of these types of sleep apnea tend to have the same or overlapping symptoms, which can make it difficult for someone to determine what kind of sleep apnea they’re experiencing.

But some of the most common symptoms include loud snoring, gasping for air during sleep, awakening with a dry mouth, or a morning headache.  If you have sleep apnea, it’s very likely that you experience insomnia, or you might wake up during the night a lot, making your sleep not restful.  So, someone with sleep apnea might also experience hypersomnolence or excessive daytime sleepiness or fatigue, as well as difficulty concentrating during the day.

Kevin Medeiros: Sure.  So, sleep apnea is most commonly diagnosed definitively through a sleep study, and VA actually requires veterans seeking compensation for sleep apnea to have been diagnosed through a sleep study.  So, if your doctor might have told you in the past that you have sleep apnea, but that wasn’t definitively confirmed through a sleep study, VA won’t accept that as enough to compensate you for the conditions.  What will to likely happen is they’ll send you to a sleep study VA exam, something like that, which we’ll get into a little bit later.

But, as far as treatment goes for sleep apnea, in mild cases, doctors will generally advise the veteran to lose weight, quit smoking, stop drinking, things like that.  But in more serious cases, a veteran might be prescribed, what’s called a Continuous Positive Airway Pressure machine, more commonly known as a CPAP machine, and what that does is deliver continuous air pressure into the airways while the individual sleeps.

Jenna: Now that we have a little bit of background about what sleep apnea is and how it’s diagnosed and treated, we can get into specifics about getting service-connected for sleep apnea.  So, as we’ve mentioned in many videos before, the main elements of service connection are: you need to have a diagnosis of sleep apnea, which is why it’s important to know how it’s diagnosed, you also need to have an event in service, and then you need to medical nexus opinion connecting that event in service to your current diagnosis.  And so, a lot of the challenges here come from veterans who are not diagnosed with sleep apnea in service, because as we mentioned you need to have a sleep study.

And so, we’re trying to demonstrate symptoms or events in service without having that diagnosis.  So, you can use service medical records, or you can use lay statements.  I think we’re going to get into it a little bit below about how to demonstrate that you had symptoms and service, like the symptoms that Bethany mentioned, snoring, fatigue, daytime sleepiness, insomnia.  And then, of course, you need a medical nexus opinion to link those symptoms to your current diagnosis.

Besides having those symptoms and service, one other kind of example that we sometimes see with veterans is if they’ve had exposures during service, that can later lead to respiratory conditions, including sleep apnea.  So, sometimes veterans who’ve been exposed to burn pits can later develop sleep apnea.  So, that’s another potential theory.

You just want to talk to your medical provider about your specific symptoms and how they think, in their professional opinion, they could be related to service.  There’s also an opportunity for veterans to service connect their sleep apnea on a secondary basis. So, Bethany, can you talk a little bit about secondary service connection?

Bethany: Generally speaking, establishing a secondary service connection would involve proving that your sleep apnea is a secondary or residual effect of another condition. So, for example, sleep apnea can occur secondary to chronic bronchitis, asthma, a deviated septum, diabetes, PTSD, and many other conditions.  So, for example, say you are a veteran and you are service-connected for PTSD and you develop a diagnosis of sleep apnea following your diagnosis of PTSD.  If you get a medical Nexus linking your sleep apnea—meaning that you get a medical opinion that it’s at least as likely as not that your sleep apnea was caused or aggravated by your PTSD—then you can get your sleep apnea potentially service-connected, secondary to your PTSD.

Another very common secondary route to service connection for sleep apnea is obesity.  And obesity is interesting because it’s important to know that obesity itself is not currently eligible for benefits, meaning that you can’t get service-connected for obesity as a disability on its own.  However, you can use obesity as an intermediary step between a service-connected disability and sleep apnea, for example.  So, if you are service-connected for an orthopedic condition that prevents you from exercising and causes you to gain weight, and you develop sleep apnea as a result of your obesity, then it’s possible that you could get your sleep apnea service connected on a secondary basis to your orthopedic condition.  What you’d have to show is that your obesity is caused by the orthopedic condition that’s service-connected and that your sleep apnea is due to the obesity.

In this case, there isn’t a direct link between your service-connected orthopedic condition and your non-service-connected sleep apnea, but because they’re linked together by obesity, then sleep apnea can get service-connected that way.

Obesity is one of the main causes that we see for sleep apnea, so this is a really important thing to keep in mind.  If you do have sleep apnea and you suffer from obesity, then it’s very possible that the two are related.  And if you have service-connected disabilities that’s causing or impacting your gaining weight, then that might be a possible route to service connection for your sleep apnea.

Jenna: It’s a little bit complicated. So, I think it’s really important to talk to your, either an attorney or a veteran service officer, somebody who can kind of walk you through it.  There’s been a lot of case law about how obesity plays into service-connected disabilities.

As you mentioned Bethany, you can’t be service-connected for obesity itself, but I think it’s an important step though, now that we can have obesity as an intermediate step.  So, it’s just something to consider and to definitely talk to your doctor about and talk to someone who is experienced in working on these VA claims, because it’s just like a multi-step process, it’s one more step that you have to prove.

So, Kevin you mentioned before about sleep studies, and how we won’t award benefits unless you have a sleep study.  Related to that is the idea of a C&P exam or a VA examination. And we’ve had a lot of previous CCK Lives about VA exams, so I would encourage all of our viewers to go back and watch those about kind of tips about how to make the most out of your exam.  I think the number one thing is to always attend your exam.

So, Kevin, why don’t you explain a little bit about what would happen at the exam specifically for sleep apnea.

Kevin: Yeah.  So, the VA exam will focus on two different aspects.  The first is for veterans seeking service connection—whether there’s a link between the veteran service and their currently diagnosed sleep apnea.

So, if a veteran thinks that they had sleep apnea during service, but as in many cases, they didn’t undergo the proper testing, they weren’t diagnosed in service, the veterans going to want to focus on describing their sleep troubles during service, their symptoms that they experienced after a night of sleep.  Things like that, that might have been indicative of the condition being present during service but, like I said, just not diagnosed.

And if the veteran thinks it might be like Bethany was talking about, as a result of the obesity, it might not have been present during service, but over the years, service-connected conditions had caused the veteran to gain weight and then develop sleep apnea.  They want to focus on how the service-connected conditions might have caused the obesity.

And then there are other service-connected conditions that might directly affect sleep apnea without the obesity as the link there.  So, respiratory conditions, sometimes we see psychiatric conditions might affect the overall severity of the sleep apnea.

And then the other part of the VA exam that will cover is the current severity of the condition.  So, whether the veteran’s diagnosed sleep apnea requires a CPAP machine, and if not, whether it’s severe enough to impact with functioning to which the rater will use to assign a rating.  So, it’s important to be honest about your symptoms.  Family members, friends can attend with you.  They might be able to submit statements, otherwise documenting either the history of the condition or the current severity of the condition as they witnessed.  And as always, it’s very important to attend the VA exam once it’s been scheduled for you or explain to VA right away whether you can make it or not.

Jenna: And that’s a good point you mentioned before about kind of the current severity.  So, once you can demonstrate service connection, the next step is for VA to rate your sleep apnea under diagnostic code 6847.  And so that information from that VA examination about the current severity is going to inform the rating that VA assigns.  And VA assigns ratings at 0, 30, 50, and 100 percent.  So, there’s some kind of jumps there.  It’s not 10, 20, 30, 40 all the way up, and it really depends on the severity as Kevin mentioned.  So, if you have a CPAP machine, that’s an automatic 50 percent.  And so I think we see a lot of veterans in our practice who require a CPAP machine.

So, it’s kind of nice once you get service-connected for it.  Certification kind of seems to be the main hurdle.  But once you get service-connected, that’s a 50 percent rating right there.  If you have less severe symptoms that don’t require a CPAP but you do have that persistent daytime hypersomnolence as Bethany mentioned before, basically, chronic daytime sleepiness that doesn’t improve, which would signal that you’re not getting sufficient sleep during the night because of your sleep apnea, that would get a 30 percent rating.

And then, as we mentioned before, it can be potentially very serious.  So, if you have chronic respiratory failure due to your sleep apnea, you’re not getting enough oxygen and you’re retaining carbon dioxide, you can get up to 100 percent rating for that.  But that’s really difficult to prove.  I don’t think we’ve seen a lot of veterans who do have a 100 percent scheduler rating for sleep apnea.  I think the more common route to getting a 100 percent rating is through showing that you’re unemployable.  So, Bethany, talk to us a little bit about TDIU.  I know we’ve talked about TDIU in most of our videos.

Bethany: Yeah.  If this is something you’re interested in, I definitely recommend looking at our other videos, but I’ll try to be brief.  But generally speaking, what TDIU is, is if you are unable to secure and follow substantially gainful employment due to your service-connected disabilities, then you may be entitled to TDIU, which compensates you at the 100 percent rate regardless of your scheduler rating.

So, if you’re unable to secure and follow substantially gainful employment as a result of your service-connected sleep apnea, once it’s service-connected, or a combination of your sleep apnea and other service-connected disabilities, then this is a benefit that you want to file for because it does provide you compensation at that 100 percent level if you’re unable to work.

If your sleep apnea is not symptomatic, then this would be a benefit that might be difficult to get based just on your sleep apnea.  But like I said, it’s based on all your service-connected disabilities.  So, if you have a combination of disabilities that are service-connected and together prevent you from working, then definitely look at our other videos, contact your VSO or an attorney, because this is something that might help you.

Jenna: And that’s a good point.  I think it’s very rare that a veteran would get TDIU based on sleep apnea alone, but as I mentioned, that 50 percent rating based on the CPAP use is a nice way to kind of bump up to what VA considers as a schedular rating and if you have other conditions that combined up to 70 percent.  So, I would definitely recommend checking out our YouTube videos on that.  I think that’s all we have today.  Kevin, do you have any closing remarks?

Kevin: Yeah.  Just when we touched on this a couple of times that the most common case that we see is a veteran who had symptoms in service, didn’t know what they were, just kind of carried on with their duties, and later found out that it was sleep apnea.  Then they try to get service-connected, and VA will commonly say that there is no diagnosis and service.  So, you want to be specific about the symptoms that you had during service and how they continued since to the eventual diagnosis of sleep apnea, if you think that your condition did first arise during service.

Jenna: I would point out to your point Kevin, that lay statements are always important but especially in sleep apnea.  Buddy lay statements are extremely important because veterans are asleep when all of these symptoms are happening for the most part.  And so, if you can contact your buddies that you shared bunks with and they remember that you were snoring and gasping for breath in service, that’s going to go a really long way.  We’ve seen a lot of cases where VA has said, “Well, they were sleeping.  So, they don’t know what they experienced during their sleep”.  But having someone else who was personally there and witnessed symptoms is really helpful.  Bethany, do have any closing remarks?

Bethany: Yeah, I would just add that, if you get a compensation and pension exam for your sleep apnea, make sure you get a copy of it.  Or, if you are, or if you can get have a representative to help you in the process because if VA gives you a compensation and pension examination and it’s negative, it’s very likely that that examiner said there are other causes of your sleep apnea that are not service-related.

One that we see all the time is the examiner will say the sleep apnea is due to obesity not due to service.  So, if you get a copy of that examination or you have a representative, they can look into whether obesity might actually help you get the sleep apnea service-connected via it, as an intermediate step or help you responding to that exam and trying to get a more adequate one if the examiner’s opinion is negative.  Just because, chances being, if the examination is negative and then VA is going to keep denying you unless you overcome that.

Jenna: Yeah, and I think that’s a really good plug for our other videos about VA exams because those are really important to kind of know how to use them and know how to respond to them.

So, thank you everyone for joining us today.  Please be sure to like this video and subscribe to our channel for more videos on VA disability benefits.