VA Disability Benefits for Respiratory Conditions

Video Transcription

Maura Clancy: Hello, everyone. Thank you so much for joining us today for our CCK Live Discussion. My name is Maura Clancy. I am joined today by Lindy Nash and Kaitlyn Degnan. The three of us are attorneys at Chisholm Chisholm & Kilpatrick. And today we are going to be talking about respiratory conditions. We have a lot of material to discuss today related to different respiratory conditions, and we are also going to be outlining the ways that veterans can become service-connected for respiratory conditions and also how VA rates those conditions.

So, before we get started just a reminder, please feel free to utilize the comments feed next to this video. If you have any questions that you would like to ask or if you would like to access any of the resources that are available through the comments feed, but also through our website at cck-law.com, please feel free to do so, we will do our best to get back to you and to post any additional resources that we think would be helpful and relevant to today’s discussion. So, again, we are going to be talking about respiratory conditions and we are first going to start off with different ways that veterans can become service-connected for respiratory conditions.

I think, a helpful background to lead off with would be to just reiterate what the three elements of VA service connection are. So service connection is the process that a veteran needs to go through for VA to recognize that a specific disability is related to their military service and generally speaking, the three elements for service connection are: number one, the presence of a current disability. So there needs to be some kind of medical problem or functional impairment that you’re experiencing in the context of respiratory conditions, we are going to be talking about some of the different respiratory diagnosis that a veteran might have, that they might file a claim for service connection for.

The second element of service connection is that there needs to be some kind of in-service event incurrence of a respiratory problem, or some kind of exposure even, we are going to be talking a little bit about different types of exposure today, that could have potentially caused or contributed to the respiratory condition that the veteran developed and then finally, there needs to be, generally speaking, some medical nexus between the current disability and the in-service event. This third element usually requires medical evidence. So in the context of respiratory conditions, we are going to be talking about different types of evidence that could be helpful to your service connection claim. But the third nexus element could also be supplied by the presence of a presumption in VA’s regulations. VA does have some regulations that presume that certain conditions are related to in-service exposures, and so we are going to get into those, over the course of our discussion today.

So let’s start with you, Lindy, if that is okay because we want to talk about common causes of respiratory conditions in veterans and one of the primary things that we think of, although this is not an exhaustive list. One of the first things that come to mind would be conditions that are suffered by Gulf War veterans.

Lindy Nash: Yeah, so that’s a great place to start. So let’s talk about Gulf War veterans and different ways that they may have been exposed to certain things that can cause respiratory conditions later on. So just to start off with, Gulf War veterans typically are thought of as having served in Operation Desert Shield and that was in August 1990 to January 1991 and then also Operation Desert Storm, which was January to April 1991. But actually VA considers post 9/11 veterans to also be considered in that Persian Gulf War category. So if you served in operation Iraqi Freedom or Enduring Freedom, you’re also considered a Gulf War veteran and VA actually says those who served on active duty in Southwest Asia from August 2nd, 1990 up until the present are all included in that category. And Southwest Asia would mean Iraq, Kuwait, and Saudi Arabia and other countries in that area, Iran.

So while you were in service during one of these operations, you may have been exposed to burn pits. So this is mostly post-9/11 veterans in Iraq and Afghanistan and what a burn pit is, is it was a gigantic hole in the ground. Some of them were gigantic like really big, football-field-size big and they would put all types of waste in these burn pits, so everything from plastics to batteries, appliances, medicine, dead animals, even anything you could think of was thrown into these burn pits to get rid of it. So, as you can imagine, when you set these things on fire, a lot of really bad contaminants were set off into the air. So if you were exposed to one of these burn pits, you’re inhaling all of these terrible contaminants and environmental hazards into your lungs. So you can only imagine the severe respiratory conditions that stem from being exposed to a burn pit.

So, basically, you would know if you were exposed to a burn pit – a large fiery hole in the ground, very scary, and leads to a lot of serious conditions. So that’s one way that we see a lot of respiratory conditions in veterans. Another way is there was a gigantic sulfur mine fire in Iraq in 2003, I believe, so a sulfur mine caught fire in Northern Iraq and it burned for almost a month. It released millions of pounds of toxins into the air and usually or mostly the firefighters from the hundred and first airborne were most exposed but there were other people who were also exposed. So if you were around that sulfur mine fire that is another great way of showing exposure and a lot of bad respiratory conditions stem from that event as well.

Another thing to mention is something called particulate matter. So if you were stationed in Iraq or Afghanistan, you were likely exposed to dust and sand storms and certain environmental hazards that you may not be exposed to here in the United States. So those dust and sand storms contained what’s called particulate matter and the EPA has actually said that it’s a complex mixture of extremely small particles and droplets and it can be made up of dust and sand, acids, organic chemicals, metals even, so imagine inhaling that and the damage that can do to your lungs and other respiratory conditions can come from that as well. So that’s something to consider.

And then one other event – a lot of things going on during the Persian Gulf War. So, oil well fires during Operation Desert Storm in 1991, Iraqi military forces set fire to over 600 oil wells in Kuwait. It created a massive environmental hazard, it burned for eight months. So thinking about all of that soot and dirt that was in the air and that was inhaled, if you are over there at that time, that can also cause serious respiratory conditions. So, as I said, a lot of different things, a lot going on over there and serious respiratory issues stemming from all those incidents.

Maura:  Definitely. And I think that’s a really good overview of a lot of different ways that veterans might have been exposed to an in-service event or something that could have caused a chronic respiratory condition that they now suffer from. So if you were stationed in the Persian Gulf during the Gulf War era as Lindy laid out, it is really important if you are trying to obtain service connection for a respiratory condition to point out any of those different environmental hazards that you might have been exposed to. As Lindy mentioned there’s a lot of different events that could have occurred. They occurred in different areas and over the course of different time periods. So as you can imagine, it is not always easy or foreseeable for VA to just sort of concede exposure. So it’s definitely important, I think if you were exposed to those events to provide some context and some details for VA to make it easier for them to concede that you were exposed to something. And all of this is relevant to that second element of service connection, which requires beyond the presence of a current disability that there was some kind of in-service event. So, as I mentioned before, this is not the only way to become service-connected for a respiratory condition, but if this type of exposure is in your background and in the course of your military service, then it’s definitely important to bring up because there are a lot of studies and literature about how these exposures were very harmful to the lungs and to the respiratory system.

In addition to these events, Lindy, as being in-service events that can satisfy the second element of service connection, there is also a presumption for Persian Gulf War veterans, it’s not just limited to respiratory conditions, but it talks about Medically Unexplained Chronic Multisymptom Illnesses, we call them MUCMIs because that’s a really long term so we try to keep it simple. Can you tell us about how the presumption for unexplained illness might feed into a claim for service-connection for a respiratory condition?

Lindy:  Yeah, so as Maura just said there is a presumption for Gulf War veterans. So this started because VA and veterans themselves were noticing that as veterans were coming back from Southwest Asia, they were experiencing all sorts of unexplained illnesses and symptoms and they really had no idea what it was from. It wasn’t something that was super obvious and there were a lot of questions and it was very mysterious if you will. And so VA created a presumption under 38 CFR 3.317 and this was intended to make it easier for veterans to obtain service connection for these unexplained illnesses. So, basically the presumption says that if the veteran served in a certain location from 1990 up until the present or December, I think it’s 2021 right now, they have certain symptoms then VA will presume that their Gulf War service caused that condition. And these presumptions include the MUCMI like Maura just said which is Medically Unexplained Chronic Multisymptom Illness – it’s a mouthful. So the presumption includes the MUCMI, other undiagnosed illnesses, and certain infectious diseases.

So we see MUCMIs a decent amount I would say in our practice here at CCK and it is basically a diagnosed condition without a conclusive etiology. So you may have a diagnosis but it’s really not clear where it came from and it’s characterized by a cluster of symptoms, it could be respiratory which is what we’re talking about today, it could be joint pain, headaches, fatigue, all sorts of different things and VA, I think, lists in the regulation a chronic fatigue syndrome, fibromyalgia, and one more gastrointestinal disorders, perhaps. So those are pretty much what makes up a MUCMI but we see all types of different things. There is no perfect example, it really just depends on the facts and every case and it’s complicated and can be really confusing but there is a presumption for Gulf War veterans.

Maura:  Good to know and I kind of think this presumption is really tough because, on the one hand, it’s always good to have a presumption that exposure caused a condition that you are suffering from but unlike the presumptions that are not placed for Vietnam-era veterans that are a little more straightforward, they are more if you were boots on the ground in Vietnam, you were exposed to herbicides. And then if you developed one of the conditions listed in the regulation, then VA would presume a connection to service. The MUCMI and the Gulf War presumptions are far more complicated and involved. There are actually some medical questions like Lindy mentioned about whether the condition or the cluster of symptoms that a veteran exhibits is explained or not. Whether its etiology or pathophysiology is known and so it’s harder to obtain a grant based on those presumptions. But this is definitely an important area, I think, an up-and-coming one. If you can believe it, VA’s research in my opinion is still a bit behind. I don’t think that they have their arms around all of the harmful effects of Gulf War exposures. And so, hopefully, the literature will evolve to shed more light on the fact that a lot of conditions including respiratory ones are due to these types of exposures and service.

And speaking of Vietnam-era veterans, Kaitlyn, can you tell us about some presumptions that are in place and these are hopefully going to be a little more straightforward, some presumptions that are in place for respiratory conditions that might be suffered by veterans of the Vietnam era?

Kaitlyn Degnan: Great. So as we know, veterans that served in Vietnam are presumed to have been exposed to herbicides, particularly agent orange. That presumption isn’t limited just to veterans who served boots-on-the-ground in Vietnam. It’s also extended to Blue Water Navy Veterans as well as veterans who served in certain locations in Thailand, Korea, and a couple of other places. So, Veterans who have been presumed to have been exposed to agent orange if they have certain respiratory conditions, we can presume that those are due to that agent orange exposure. So those include cancers of the lung, bronchus, larynx, or trachea. So if you have a diagnosis of any of those types of cancers, and you were exposed to agent orange, it should be fairly simple to establish service connection that way.

Maura:  And that’s pretty much as straightforward as a presumption gets, I think. Like I said before the Gulf War presumptions are totally different, but that’s good to know also because I think that sometimes the respiratory conditions that are presumptively related to agent orange exposure are not the most prominent conditions that we see as much for Vietnam era veterans. So those are important to know that those are listed in the regulation as well that certain types of respiratory issues are covered.

And, Kaitlyn, we’ve been talking a lot about presumptions and exposure-related causes of respiratory conditions, but we want to make sure that everyone knows that you can still establish service-connection by meeting those three elements that we talked about in the beginning. And so if you have a respiratory condition that you believe is related to service, you could still provide evidence to show a connection without ever having been exposed to anything. So, can you talk a little bit about other ways to get service-connected for respiratory conditions to include on a secondary basis?

Kaitlyn:Of course. So one of the things that we actually, I think, are seeing more and more frequently now is veterans who are service-connected for PTSD but also have sleep apnea. There’s been some research that’s been done to show that PTSD can aggravate sleep apnea. As you know, if you’re a veteran with PTSD, you might experience symptoms such as different kinds of sleep impairments or things that just really mess with your sleeping and studies have shown that that can aggravate sleep apnea. So that’s a way that you could obtain service connection on a secondary basis, you still go through the same service connection analysis that you typically would but half of it’s already done for you, right? If you can show that your sleep apnea is caused or aggravated by PTSD, you’ve already got that in-service element met.

Maura:  Perfect. And then before we move on to different kinds of respiratory conditions and how VA rates them, so we will pivot to assuming that service connection has already been granted, how VA is going to assign ratings that results in compensation for respiratory conditions, I think an elephant in the room when we talk about respiratory issues is a smoking history. I think it’s one of VA’s favorite things to say when they deny service connection for respiratory issues is just to blame the veteran’s smoking history if there is any or being the cause of the respiratory condition that they are claiming. This is something that we see all too often in this context. And so if you’re seeking service connection for a respiratory problem, but there’s a smoking history present, that is documented in your records or that doctors are pointing to as potentially a cause of your respiratory issues, it is important to remember that the standard for a nexus which is the third and final element of service connection is that it’s at least as likely as not that service caused the condition that you have. So a smoking history is not going to be a categorical bar to getting service connection. Admittedly, it is something that can be difficult if doctors are pointing to a smoking history as a cause of a respiratory problem, but if that’s happening, it’s important to think about whether you can obtain medical evidence that sort of talks about other potential causes for your condition and kind of quantifies the degree to which smoking might have contributed to what you have. It doesn’t necessarily mean that you can’t be successful. It’s just an added complication.

And with that said, we will move to talk about ratings for different types of respiratory conditions. We have a few specific ones that we want to talk about, again, not an exhaustive list, but important to note that not all respiratory disabilities are rated in the same way. So, the diagnostic codes for respiratory conditions can be a little bit confusing and they’re not all the same for every type of respiratory problem that a veteran might have, but we’re going to do our best to run down a few of the ones that we see more frequently. So, Lindy, can you tell us about how VA rates sleep apnea?

Lindy:  Yeah. So sleep apnea can be found under diagnostic code 6847 and you can see all the different ratings there and what they entail. But for sleep apnea, to get that service-connected you really need to show that it began in service or, you know, like we talked about before, it maybe could be considered a MUCMI or maybe it could be due to your agent orange exposure although not presumptive so you would definitely need a medical opinion for that. But sleep apnea can certainly be service-connected and it’s diagnosed with a sleep study. So you, unfortunately, have to attend probably a long examination where they look at your sleep patterns and how the air is coming into your body and what you’re doing at night while you sleep. So you do need to attend the sleep study.

But after you do that, they’re going to look at what went on during that sleep study and other conditions or symptoms that you experience every day. So a hundred percent rating will be awarded if they see chronic respiratory failure with carbon dioxide retention, the need for tracheostomy or cor pulmonale, which is the enlargement or failure of the right side of the heart. So that’s the most severe. I’m not sure that I’ve ever seen a hundred percent rating for sleep apnea. I’m sure they’re out there but it’s pretty rare for me anyway, but we do see a lot of 50 percent rating. So the first one is a hundred percent and then it jumps to 50.

So 50% is awarded if you require a breathing assistant device such as a CPAP machine. So, CPAPs are often prescribed for most sleep apnea cases. And so it’s basically, you know, that masks that you wear at night and it allows you to breathe properly and keeps you from breathing at night. So it’s a very important machine but it shows the severity of your sleep apnea. So if you have a CPAP, you’re pretty much automatically guaranteed a 50 percent rating, which is really awesome and can really boost your combined service-connected percentage. And then below 50% is 30% and that’s awarded if you show a persistent daytime hyper-somnolence. And so that just means persistent daytime sleepiness that doesn’t improve with sufficient sleep and then 0% is awarded if VA concedes their sleep apnea is due to service but it’s really asymptomatic. It doesn’t affect you very much and you know, there are no serious symptoms that stem from it. It’s just been documented that you have sleep apnea.

So those are the four different ratings you can get if your sleep apnea is service-connected.

Maura:  Thank you, Lindy. And, Kaitlyn, can we talk now about rhinitis, which is a separate condition that manifests with separate symptoms and so, therefore, VA is going to use different criteria for assigning ratings if a veteran service-connected for it.

Kaitlyn:Yeah. So rhinitis is it’s basically an inflammation of mucous membranes in your nose. It can either be allergic or non-allergic both are compensated under a diagnostic code 6522. I’ve personally seen this condition most often in Persian Gulf War veterans. We see that a lot in veterans who served in that area, but they’re rated a little bit on the lower end of the spectrum. But, first of all, your bronchitis must be chronic in order to receive VA disability benefits, so, you know persons can have just episodes of rhinitis, you know, kind of acutely throughout time but it has to be chronic before VA is going to assign you a disability rating for it. And a 30% rating is assigned for veterans who have polyps which are, I guess, you would describe them as little pockets that form in the mucous membrane and can partially obstruct airflow. So if there are polyps present, then VA will assign a 30% writing for those. But if there are no polyps at all, but there is a greater than 50% obstruction of the nasal passageway or complete obstruction on one side, then VA will assign a 10% rating for that rhinitis.

Maura:  And then in addition to rhinitis, there are other conditions that are rated in a totally different way that we’re going to get into because the ratings are premised largely on certain types of testing that’s done and what the results of that testing are. Those conditions include bronchiolitis, asthma, and COPD. Kaitlyn, generally speaking, what types of veterans or what kind of exposures do veterans have in their backgrounds that usually leads VA to grant service connection for those types of conditions.

Kaitlyn:So, a lot of post 9/11 veterans, veterans with exposure to sulfur mine fires and burn pit exposures. Those are the kinds of exposures that we typically see that result in those different types of inflammation such as bronchiolitis. Yeah.

Maura:  Okay, and before we get into the testing part of today’s discussion, which like I said before and I’ll probably say it multiple times – it’s a little complicated, it’s not very intuitive. But it’s just the way that VA rates certain types of respiratory conditions. And so it’s important to bear in mind what kind of evidence you need or what kind of proof you need to show to be entitled to an increased rating. But something to keep in mind is that respiratory conditions will oftentimes result in functional impairment and symptoms separate from the types of issues or treatment methods that are specifically contemplated by the diagnostic codes that VA uses.

So, in addition to proving that you meet the criteria for a higher rating or for a certain rating under VA’s diagnostic code, it can also be very beneficial and helpful to point out to VA all the different types of functionally limiting symptoms you have as a result of your respiratory condition. Not many of the diagnostic codes talk about things like shortness of breath and result in fatigue or the things that fatigue can cause if you are short of breath all the time such as walking impairment, standing impairment, and all things like that. Those are functional limitations that are really relevant to any kind of rating, VA supposed to be accounting for those in some way and so although it might not result in an increased rating under the diagnostic code for the respiratory condition that you have, it’s helpful for VA to know it could give rise to the assignment of separate ratings, which could result in increased compensation for those separate symptoms that are not contemplated in the diagnostic code. It could also give rise to an extra scheduler rating which again would be another means for increased compensation.

So, although the different types of test results are not easy for a veteran who’s on their own trying to show that they’re entitled to a higher rating, to just throw out there people don’t really have access to these types of tests unless they’re going to a certain type of clinician, it can be helpful and worthwhile to submit evidence like lay evidence or

testimonials from people that you know to speak to the types of impairment that you have as a result of your condition. So with that said, we’re going to talk about the four different types of testing that are used to rate certain conditions in the rating schedule. These include bronchiolitis and asthma, emphysema, and COPD. So, we’ll start with you, Lindy, can you talk about the first two types of testing that are contemplated by those codes?

Lindy:  Yes. So the first one is called forced expiratory volume in one second. So FEV-1 is how it is frequently seen in paperwork. And that basically means it’s the maximum amount of air that a person can breathe out in one second compared with someone else’s results for a person your size and your age. So they’re basically taking the maximum amount of air that you can breathe out in one second and comparing it to someone who’s just like you to see, you know, how much air you are actually breathing out? So that’s the first one, FEV-1. And then the second one is forced vital capacity so FVC and that’s the total amount of air that a person can exhale after a full breath in so you take a huge breath and then you exhale and that measurement sees how much air you are actually releasing from a deep breath in like that and VA uses a ratio of the two above metrics to determine the severity of your asthma or COPD or whichever condition you’re looking at. So those two metrics are pretty important in the rating schedule.

Maura:  And the other two, Kaitlyn, can you tell us about the two other types of metrics that VA will look to in trying to rate respiratory conditions?

Kaitlyn:Yes. So the third type of testing is diffusion capacity of the lung for carbon monoxide by the single breath method also known as DLCO and that measures the ability of a person’s lungs to transfer gas from the air that is inhaled into their red blood cells by comparing carbon monoxide levels retained after exhaling. From what I’ve read about it, it can be a little bit of an easier task than the FEV or the FVC because basically just requires the person to hold their breath for about 10 seconds. The fourth type of testing is exercise testing and that determines how much oxygen a person’s blood uses when they’re functioning at maximum capacity. So it measures the maximum amount of physical activity that a veteran can repeat and sustain. So, you know, not just can you do this once, can you repeatedly do this action? And measurements are expressed by the amount of oxygen used by your body per minute.

Maura:  Okay. Well, I did not go to medical school, but I kind of wish I had now. Sometimes it feels like you need a really extensive medical background to be involved in VA claims and appeals but that’s all really helpful. I think it’s really good to understand that these types of testing, how they’re conducted, and also to just be aware that certain testing is necessary at the end of the day before VA is going to grant an increased rating claim. Some diagnostic codes are just a lot frankly, easier to work with than others in terms of what kinds of evidence you can submit and unfortunately, with respiratory conditions, the methods that VA has chosen to use to mark off the levels of the severity of different disabilities is tough to come by, you can’t just submit lay evidence to show that you meet these parameters.

But as I said before, it is still relevant to describe to the VA what kind of functional impairment you’re having so in addition to getting these test results in the record, it’s always a good idea to supply VA with information about how your disability affects your day-to-day life, have others testified to that on your behalf as well. If they can see the effects of your disability impacting you and your day-to-day functioning and a lot of that can be done by lay evidence. So don’t feel like just because you need to get scheduled for a C&P exam, compensation and pension exam, or because VA is waiting on certain test results like this that you can’t do anything to help your claim.

And I wanted to, on that note, end with a couple of practical tips to see if either of you had anything to offer in addition to what we’ve talked about today. I think we’ve talked at length about the different types of causes for respiratory conditions particularly among veterans who served in Vietnam and the Persian Gulf and we’ve also talked about the different mechanics of the way that ratings work once VA grant service connection, but I’ll start with you, Lindy. Is there anything additional that you want to end with in terms of what people can be mindful of if they’re seeking service connection or increased rating for these conditions?

Lindy:  Yeah. I mean, I think what you were just saying is really important to keep in mind. So a lot of these conditions are heavily based on exams and sleep studies and FEV-1 results. So, in that sense, it is what it is. However, I do think it’s still important to submit lay evidence especially for maybe sleep apnea, you could submit a buddy statement saying that your friend in service witnessed you waking up in the middle of the night and gasping for air. He noticed you weren’t breathing, your spouse may notice that. That can all be really important especially for going for service-connection itself. So don’t be afraid to submit lay evidence. It certainly can’t hurt, in my opinion, to do that. So continue to do that if you have any of those, you know, if you have been a smoker for a while or maybe obesity is involved that can also be looked at by VA as, “You know, that’s the reason why you have sleep apnea, it’s not your agent orange exposure. It’s your smoking history or your age or obesity.” In those situations, it’s super important to get a medical opinion, you know, you can get your own medical opinion. You don’t have to rely on VA’s opinion. You can get a private opinion which is super important, especially when you have other things going on, so I would just suggest that you think about things like that and consider lay evidence as well.

Maura:  Great. And, Kaitlyn, what about you? Any final tips or closing thoughts?

Kaitlyn:You know, I really would just echo Lindy’s sentiment about how important lay evidence is because not only does VA have to consider the lay evidence. But if you do get a C&P exam and that lay evidence is in the record, the examiner is supposed to consider that evidence as well. So that can actually inform the VA examiner’s opinion and help you get a more favorable opinion. So, again, even though a lot of these conditions seem almost mechanical in the way that VA applies the rating criteria, those lay statements can even inform those examiner’s opinion. So it is super super important to submit those as well.

Maura:  I think that’s a really great point and I think that’s a really good example of how to kind of further your claim or appeal. If you do know that you need to attend a C&P exam or that eventually if VA is going to schedule you for an exam in order to adjudicate your increased rating claim or your service connection claim. Kaitlyn brings up a really great point that in any contact, service connection, increased rating, respiratory conditions, other types of conditions, whatever you’ve got going on C&P examiners are supposed to consider lay statements. They’re supposed to be considering your whole claims file, essentially. And so whenever you submit lay evidence that speaks to how your condition impacts you when it started when you first started noticing symptoms, all of that is important for the examiner to consider. So, very important. It might not seem like at the end of the day, it’s going to be the only thing that can win your claim or win your appeal but it is super valuable and can help you a lot if examiners are going to try to issue an opinion that isn’t predicated on everything that you tell them at the appointment, then you can really do yourself a favor by documenting what you are remembering and feeling at the current time in the form of lay evidence. So, a great point.

And I think that that’s all that we have for today. We hope that this information was helpful. Again, please feel free to access our website at cck-law.com. We have various blog posts about specific types of respiratory conditions and other materials about increased rating and service connection issues. So if those are helpful to you, we really hope that you can utilize them. And thank you again for joining us today, and we hope to see you next time.