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VA Disability Ratings for Sleep Disorders

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Video Transcription

Jenna: Good afternoon. My name is Jenna Zellmer, and welcome to CCK LIVE. Joining me today are Christian McTarnaghan and Mike Lostritto. Both of us, all three of us are attorneys at Chisholm Chisholm and Kilpatrick practicing veterans’ benefits law.

And today, we’re going to be talking about some common sleep disorders that veterans experience due to their service. And before we begin, as always, if you have any questions as we discuss this issue, please feel free to leave a question or comment in the box below. We’ll do our best to answer that in the session. And if we can’t get to it in the session, we’ll try to answer it in the comments. And we’ll also be including some helpful information via our blog. We’ll link that in the comments. And as always, feel free to visit us at cck-law.com.

So let’s get started. Christian, you want to start us out by just kind of explaining what some common sleep disorders veterans experience are?

Christian: Sure. So, we’re going to talk about a few during the course of this presentation, this talk. But I think maybe focus on the most common one that we see in veterans. First, that would be obstructive sleep apnea or sleep apnea.

Jenna: Right. Great. And Mike, what is sleep apnea?

Mike: So, sleep apnea is, I think it’s maybe one of the most common conditions that veterans claim in terms of sleep disturbances. And they’re really three subsets or three different types of the condition. There’s what’s called obstructive sleep apnea, which deals with the muscles in a person’s throat. They will, from time to time, close and prevent breathing. There’s also something called central sleep apnea, which deals with the brain’s ability to transmit signals to the muscles of the throat. And that can also cause a veteran to be unable to breathe with a normal frequency. And then finally, there’s something called, you know, complex or mixed sleep apnea, which is, as it sounds like, a combination of both.

Jenna: Great. And, you know, I think a lot of times veterans, that I speak to, have couple because they aren’t diagnosed with sleep apnea until much later after service. And they have trouble connecting that sleep apnea to service. So, Christian, how exactly sleep apnea diagnosed and why is it almost always diagnosed after service?

Christian: Yeah, it’s almost always diagnosed after service, because in order to truly diagnose obstructive sleep apnea as opposed to, maybe I think we both have had cases, all three had cases just snoring or something like that. It needs, there needs to be a sleep study because like Mike, you said, obstructive sleep apnea medically is the closing of the throat that doesn’t allow for proper breathing during sleep. And you have to perform a sleep study in order to get that sort of medical certainty.

Yeah, that, that’s actually what’s causing your sleep problems.

Jenna: Ok. And, you know, obviously, this can be a private exam. It can be a VA examination. We have a lot of material from previous Facebook lives and also on our website about, you know, service connection and how to get a VA exam and how best to use an exam in your favor when you’re trying to get service connection. But let’s assume that a veteran has met that initial threshold, they’ve gotten service connection for sleep apnea. Mike. Can you talk to us about, a little bit about how VA rates sleep apnea?

Mike: Sure. So the evaluation is rated under diagnostic code 6847. And like all diagnostic codes, VA is looking at the severity of the condition. So it ranges from a 0 percent rating to a 30 percent rating, to a 50 percent rating. And ultimately the maximum rating, the 100 percent rating is what’s a for going to be the diagnostic code. The 0 percent or non-compensable rating is awarded where a veteran does, in fact, have a diagnosis, but is essentially asymptomatic. A 30 percent rating that is awarded if a veteran experiences chronic daytime sleepiness, essentially. A 50 percent rating, which we commonly see here, at least in my practice, is awarded where a veteran needs the use of some type of breathing assistance device or C-PAP as we commonly see it. And that like I said, that’s the most common level of evaluation that I see in my practice

Jenna: Yes.

Mike: In terms of severity. And so, you know, the VA will conduct an examination, and then they will rate the condition based on the severity of the condition, assigning one of those appropriate reading schedules.

Jenna: Yeah. I think, one thing I wanted to highlight when you mentioned the 30 percent rating was that daytime sleepiness, VA calls it hypersomnolence.

Mike: Yeah.

Jenna: So if you see that word and you’re not really sure what that means, it’s actually just excessive sleepiness during the day, which is, you know, linked to not getting enough sleep at night because you can’t breathe. And I think, you know, we’re going to talk a little bit about other sleep disorders or other disabilities that can result in sleep issues, and a lot of times people suffering from insomnia suffer something similar in terms of staying, having difficulty staying awake during the daytime, and so you just want to make sure, you know, when you’re making arguments about kind of the disabilities and the effects that you suffer from your disability, that if you just remember that you need to actually have that diagnosis of apnea in order to get that rating under that code. But there are also other options.

Mike: And one thing I’ll just add in two if I could. I know we talked about three subsets of different types of sleep apnea. But in terms of rating the condition, a veteran won’t receive a separate reading for each of those will receive, the veteran will receive, you know, a single combined rating, if you will, for the sleep condition based on that.

Jenna: Do either of you guys want to talk about, kind of, why we think sleep apnea is so common among veterans?

Mike: Sure.

Jenna: It’s really one of the most common respiratory conditions claimed by veterans, according to VA. So it’s both the sleep and disorder. And, you know, that’s what I’m talking about today. But it is also a respiratory disorder. So.

Mike: Yeah, I would say that I think, that it’s one of the most common conditions that is claimed, basically, because there are so many different theories or avenues for veterans to be able to show that it was caused by their service. And so veterans can show, you know, that they’re entitled to a service connection for this condition based on what we call direct service connection. Something in their, maybe, service records that shows that the sleep disturbance occurred or arose during their time in service. But there are also many other avenues, too. So veterans can show that their, and we’ll get into this, but veterans can show that their sleep apnea was caused secondarily to another service-connected condition. And then finally, there are presumptions. There’s certain presumptions that can lead to the sleep apnea being service-connected. So my guess is that it’s so commonly claimed because there are so many different avenues that veterans can use to ultimately seek service connection for the condition.

Jenna: Great. And I think, you know, you mentioned secondary service connection, and that’s a really nice transition.

So we do have an entire Facebook live all about secondary service connection. But essentially now if you have a service-connected to a condition and that causes or aggravates another condition, you can get secondary service connection for that second condition.

So, Christian, do you want to talk a little bit about some primary, some common primary service conditions that can later cause or aggravate sleep apnea?

Christian: Yeah, absolutely. So I think first and foremost would be post-traumatic stress disorder. So, unfortunately, a lot of veterans have post-traumatic stress disorder. And there is, you know, I think a correlation between, I think that’s the exact word.

Jenna: Yes.

Christian: we get, between post-traumatic stress disorder and obstructive sleep apnea. So if you have sufficient evidence to show that you’re post-traumatic stress disorder, either caused or made your obstructive sleep apnea worse, you could be entitled to service connection for that. I know that we’re going to have some more information coming soon about that link between PTSD and obstructive sleep apnea.

I mean, there’s links between anxiety and depression and other psychological disabilities. And I think even Parkinson’s disease has some links or correlation between having that condition and also having obstructive sleep apnea.

Jenna: Yeah. So I think, like if you have, if you’re service-connected for any of these conditions or really service-connected for anything, and you also have sleep apnea, that’s really important to, you know, talk to your doctor, talk to your VA or whoever your service representative is, to kind of do some research and figure out if there’s any sort of link, because, you know, once you claim that it’s the VA’s job to, kind of, help you try to substantiate that.

I think another important thing is, kind of, obesity as an intermediate step. Mike, do you want to talk a little bit about that?

Mike: Sure. So, you know, veterans who are obese tend to have, I think, a higher propensity for developing sleep apnea. And so what, you know, the current rule allows is for veterans to use their obesity not as its own disability, for which they can receive compensation, but as, kind of, a link between a service connected condition.

Christian: Yeah.

Mike: And ultimately getting sleep apnea granted. So, what I mean by that is take an example where a veteran has service connection for, you know, maybe their knees and their back. And as a result of those service-connected or the pidic conditions, they’re unable to exercise routinely as they used to or just, you know, engage in any type of physical activity. And as a result of that, they, you know, they gain weight and they’re classified as obese.

So veterans could then use their service-connected knee and back condition, link that to the obesity and then link the obesity as the cause to sleep apnea, and then create the causal chain really to them get sleep apnea granted.

Jenna: Yeah.

Mike: And that really goes to your point, Jenna, about making sure that you’re talking to your doctors, you’re talking to advocates about how, if you have obstructive sleep apnea or think you have obstructive sleep apnea, how to get that service-connected, because, I mean likes chain of events isn’t simple. [ laughter] And even expounding upon that.

Jenna: Insinuated.

Mike: If someone has knee pain, right? And they’re taking some sort of medication that causes weight gain, right? Service-connected knee disability causes pain medication causes weight gain. Obesity is linked to the obstructive sleep apnea. That would be another way that someone could be service-connected for obstructive sleep apnea. And it might, you know, it might not seem like that will be who it works, but it is, yep

Jenna: Yeah. And if you have any questions, just as a reminder, please feel free to leave them in the comments below. I know that this is a little bit, it’s complicated situation. And I think, you know, just going off on what you guys said, VA’s position on using obesity as an intermediate step is fairly recent. The VA Office of General Counsel came out with an opinion just about two years ago. And so, you know, they’re still, kind of, figuring out how this applies.

Mike: Yeah.

Jenna: And so that’s why it’s really important to reach out to a rep and someone who’s experienced with this type of argument, so that you can make sure that you’re making the best argument possible and really giving yourself the best chance of getting service-connected

Mike: Yeah.

Jenna: So let’s move on. So we said that sleep apnea is probably the most common sleep disorder among veterans. But another really common one is insomnia.

So, Christian, do you help a little bit about what insomnia is?

Christian: Yeah. So I think this is maybe something that people might be a little bit more familiar with, and sort of used colloquially as I can’t sleep. But that’s essentially what it is. Insomnia is an inability to stay asleep, fall asleep, have restful sleep. And it leads to sort of a similar, you know what, we sort of like functional effects as may be sleep apnea. But the cause, you know, could be very different, typically is very different because if it’s an upper respiratory problem, then it would most likely be sleep apnea. But so basically, exactly what we use it like in everyday, everyday language is just an inability to stay asleep, fall asleep.

Jenna: I think that it can actually be diagnosed under, it can’t be diagnosed after this psychiatric diagnosis.

Christian: And I’m not sure if it’s. It certainly was really.

Jenna: Certainly a symptom, yeah.

Christian: Definitely.

Jenna: Yeah, it’s either, it’s own psychiatric diagnosis or it’s a common effect of many psychiatric diagnoses. And I think that that kind of goes into my next question is, is how is insomnia rated? And so. Mike, we talked a little bit about how sleep apnea is rated, kind of, similar to respiratory conditions, right? So it’s similar to whether or not you need a C-PAP and whether or not you have, you know, this chronic respiratory difficulty. But insomnia is rated under the schedule for mental disorders, right?

Mike: That’s correct. And so we often see is that insomnia is, for lack of a better word, lumped in with the underlying condition that maybe causes the insomnia. So in my practice here, we often will see a veteran with psychiatric disability, for instance, maybe PTST. And one of the symptoms or, you know, one of the things that leads to insomnia would be that psychiatric condition. And so insomnia then would be rated basically as part of that underlying psychiatric condition under that diagnostic code. So then you wouldn’t necessarily receive a separate rating under a separate diagnostic code for insomnia. You know, it would be part of the underlying condition.

Jenna: Yeah. And I think if you look at the general rating formula for mental disorders, you’ll see in the various different levels of disability, they have chronic sleep impairment as one of the symptoms listed. And so, there is some overlap there. And so I think sometimes veterans get confused or upset that they’re not getting a lot of smaller, separate ratings. But it’s just important to remember, like you said, that VA will rate different manifestations of a disability under one kind of more wholly encompassing rating.

Mike: And on that point to, you know, veterans can experience insomnia due to physical disabilities. So that’s something to keep in mind. You know, a veteran with a very severe orthopedic condition that can keep the veteran up at night, absolutely, and that may not be really contemplated under the diagnostic code.

Jenna: Right.

Mike: That a veteran is being compensated for their orthopedic condition. So then you might want to look elsewhere and see whether those additional symptoms are being contemplated or captured, you know, by a different diagnostic code to receive additional benefits.

Jenna: And that’s really important point. So you really want to look and see what your assigned rating is compensating you for. There’s a whole line of cases that most recently culminated in one called Morgan that really emphasized that veterans can be compensated for each individual manifestation of their disability.

Mike: Yeah.

And so, you know, Mike’s example, if you’re being rated for a disability that’s only based on range of motion and your limitation of motion, You know, sleep impairment is really not going to be covered under that rating. And so you can try to get a separate rating and you can look at the schedule for mental disorders, or the sleep apnea schedule to look as a guide for how VA might want to rate that disability or that impairment from that disability. So that’s a really good point.

And so finally, Mike, you had mentioned before, you know, that there are presumptive sleep disorders related to the Gulf War and related to service in southwest Asia. So first, let’s kind of go back a second and talk about. Well, before we move on to that, maybe. Take this question from Marcus. So Marcus asks, Is evidence of snoring enough to establish service connection for sleep disorder? So do you guys want to take it?

Mike: Sure. So..

Jenna: The answer is: It depends.

Mike: Yeah, maybe it depends. I would say it depends on the type of evidence.

Christian: Sure.

Mike: And what the ultimate diagnosis is, you know, if you’re claiming service connection for sleep apnea, you’re still going to

Christian: Yeah.

Mike: Need a diagnosis of sleep apnea. And you’re going to have to show ultimately, you know, that, you know, in-service snoring, if it’s well documented in, say, a service record caused or contributed to, you know, your current diagnosis of sleep apnea. So I think the answer really depends and plenty more information as well.

Christian: Sure. I mean, if someone has a deviated septum or broke their nose in service. right? Sleeping might be evidence of that, but it would also have to cause some sort of functional impairment. So possibly but probably not just on snoring alone.

Jenna: Right. And I think.

Christian: But, you know, you never know.

Jenna: That goes back to my point earlier about, you know, we have a whole Facebook live about service connection and it really goes into the different elements of service connection. So if you have a current diagnosis of sleep apnea and you had snoring in service, snoring in service might be in service event or injury element, but you still need that in access. And, you know, in my practice, I’ve seen a lot of examiners will say, “Well, he’s snoring in service, but lots of people snore.

Christian: Yep.

Jenna: And that’s not necessarily due to sleep apnea, especially because he wasn’t diagnosed to sleep apnea until several years after service.”  And that’s why.

Mike: 20 years,

Jenna: Yeah.

Mike: 30 years after service. Yeah.

Jenna: Yeah. So it’s really hard because a lot of times, you know, the fact that he wasn’t diagnosed until after service doesn’t necessarily mean it’s not related to service. But you really need a good opinion linking that snoring as a manifestation of undiagnosed sleep apnea in service in order to, kind of, or maybe an early manifestation of something that later became sleep apnea. So you really have to, kind of, work with the facts of your specific case and make sure that you have a good doctor who can give you a well recent opinion. So that’s a good question. Thanks, Marcus.

Mike: Yeah.

Jenna: So let’s go back to Gulf War presumptive about sleep disorders. And I wanted to before we get into that, I wanted to, kind of, you mentioned we do have some information about the Gulf War in general and service in Southwest Asia in general.

But, you know, for purposes of this discussion, when we’re talking about service in Southeast Asia, what exactly, you know, is there a specific time frame? Is there a specific, kind of, area in Southwest Asia? What are we talking about?

Mike: So we’re talking about the period from August 2nd, 1990, up and through to the present day. And I think, you know, VA and Congress continue to extend that period out. So veterans that served in southwest Asia from that date up into the present would be, would qualify under, potentially, qualify under this presumption. And basically what a presumption is, is it’s just a, it’s an ability for veterans to be able to link a condition, their current sleep condition in this instance to their service, despite the fact that they may not actually have medical evidence that shows a medical nexus connecting, connecting the two. So I always think of it as a shortcut, in essence,

Jenna: Yeah.

Mike: To getting service connection.

Jenna: Great and Christian, what type of sleep disorders, you know, besides that, the ones that we’ve talked about, what type of sleep disorders are specific to service in Southwest Asia?

Christian: Yeah. So, MUCMI is a complicated concept.

Christian: Lots of information, but a medically unexplained chronic multi-symptom illness is what MUCMI stands for. It’s one of my favorite VA acronyms, but there are a few. So there’s two ways that just very, very briefly, there’s sort of two ways that you can be afforded this presumption. One is having a  MUCMI  then there’s a whole sort of other host of undiagnosed illness, part of the regulation, 3.317.

So I think an undiagnosed, so we’re under the subheading of undiagnosed. I think the most common would probably be an undiagnosed sleep problem, right? The veteran doesn’t. So. So the whole reason for the presumption is there were so many soldiers coming back from Southwest Asia during that time period with

Jenna: Mysterious illnesses

Christian: Mysterious illnesses that people couldn’t diagnose. They didn’t know what was going on. So you go to a medical provider, you don’t fit in the sleep apnea box. You don’t really have insomnia. So that would be one of the ways that you might be able to still get service connection. If you were qualified otherwise about the appropriate time in service, the appropriate place where you serve. So you might be able to go that route to get service connection and then you can just skip the whole nexus element. You were there. You had this undiagnosed sleep. You’re supposed to be service-connected for it.

Mike: It’s that easy.

Christian: Yeah, right. Pretty easy to explain, easy in practice. You know, there’s a lot of litigation about these, are you?

Jenna: So that’s, so that’s a good point, you know, you talk about undiagnosed illnesses, but you mentioned, you know what, a MUCMI is. And I think probably the most common MUCMI that we see in this area is chronic fatigue symptoms

Mike: Yeah. And that’s explicitly in the regulation and the statute.

Jenna: Yes. So MUCMIs are, they’re hard to kinda figure out that the regulation does explicitly list three specific ones. And so chronic fatigue is one of them. So that makes a little bit easier than trying to prove that something that’s not listed there qualifies as a MUCMI. So, good.

So, Mike, are there any other, you know, sort of disorders related to service in southwest Asia that maybe wouldn’t be presumptively service affected, but are an area of interest?

Mike: Yes. So for veterans who served in southwest Asia. There’s I think this is kind of a, you know, newer area for sure. A developing area, if you will. But many veterans who served during this time period and in this area were required to take a drug called Mefloquine.

And Mefloquine basically is an anti-malarial drug. And it was required for veterans to take this. And they took it up until approximately 2013, as my understanding, when, you know, the VA decided no longer to issue this particular medicine. It basically came in a small pill, as my understanding, a little white tablet and veterans oftentimes would take it. It wouldn’t always be documented in their service records, which makes it very difficult for veterans to then prove they actually took it. But basically, there’s, you know, new research, new studies, new opinions out there which are now linking veterans Mefloquine poisoning, as is how they’re phrasing it to, you know, now later conditions such as different sleep conditions, and a whole host of other things as well. But, you know, I think for veterans to go down this path, they would have to show some evidence of the fact that they took Mefloquine. And that can be potentially through a affidavit, a late statement, maybe a body statement as well to help establish that. And then they would for sure need some type of medical nexus expert opinion that shows that their Mefloquine use essentially was Mefloquine poisoning if you will. As I understand it. And that ultimately would lead to ease the condition that they now have currently diagnosed.

Jenna: That’s a uphill climb.

Mike: It’s I think it’s an emerging area.

Jenna: Yes.

Mike: It’s something that we should be on the lookout for. And it’s something that veterans who served during this time period and in this location and who know or maybe they know that they have service records that document this. You know, maybe considered as an avenue of service connection. And if you’re interested, perhaps seek out, you know, a medical opinion that could take a look at the case and.

Jenna: Check out our Facebook live and have some more information on that.

Mike: Absolutely. And maybe, you know, maybe they can review your case and provide a favorable opinion.

Jenna: Great. Well, thank you for that.

Mike: Sure.

Jenna: So just a little bit some closing thoughts. You know, we talked about some of the more common sleep disorders. You know, regardless of what your actual sleep disorder is, you know, what happens, you know, your reading depends on kind of how severe that is. What happens if your sleep disorder prevents you from working, Christian?

Christian: Well, that has TDIU written all over it. So like Mike said at the beginning, there is a 100 percent rating option for obstructive sleep apnea. There is a 100 percent rating for the mental disorders under 4.130. But if a veteran’s condition doesn’t meet sort of the letter of the 100, what we call 100 percent scheduler, there’s an alternate avenue that they can take in order to get a 100 percent rating without giving the schedule rating, and that’s on employability. And this links back to what you were talking about in Morgan.

Jenna: Nice.

Christian: Not only the separate ratings but just reaffirming VA’s duty to maximize benefits. So if you have obstructive sleep apnea, even if it’s rated at a 30 and that prevents you from working, you know, you should be entitled to employability benefits. And at the very least, the VA needs to adjudicate that issue and take a look at it.

Jenna: We have a lot of information about TDIU, on our web site and we’ve done several Facebook clubs, I’m sure about it. So there’s no lack of information about TDIU. So if you have any questions, please feel free to check out our Web site.

You know, I think we talked a little bit about kind of common errors that VA makes and adjudicating sleep that I mentioned. Course, in any such history, I mentioned particularly for sleep apnea, they really focus on the lack of diagnosis in service. Do you guys have any other kind of common errors that you’ve seen?

Mike: Yeah. So one thing that I see is that VA oftentimes discounts the evidence. And so, you know, despite the fact that a veteran may not have a well-documented sleep condition in the records, perhaps a veteran, in addition, has provided delay statement and the veteran has provided a buddy statement on top of that. And the statements all say that, you know, during my time in service has confirmed by my buddy, you know, I oftentimes woke up in the middle of night and had difficulty sleeping. And so, you know, that can go, that should at least be considered. If nothing else, VA should consider that lay evidence in adjudicating the claim.

And so I see oftentimes they will complete disregard that and just look to whatever is listed or not listed in the medical records.

Christian: And sort of spring boarding off that VA will often not look at that evidence in understanding whether an examination is necessary. So, you know, as we’ve, sort of, discussed and highlighted, an exam is really crucial if you want to get service-connection for your obstructive sleep apnea because you need a sleep study just medically to actually diagnose that condition. So using Mike’s example, you have a buddy statement, a statement from a fellow soldier or, you know, a partner about how you were waking up gasping for breath.

Right. I’m just making up perfect facts here. Hear snoring and you had trouble sleeping. That should be, and we have no information, our Web site about how you get exams. That should be the indication. So you have current symptoms of a disability of sleep apnea. You have the in-service and currents in your body statements. And then you have some indication, right, that your current symptoms are related to that sort of sleep problems and service. That should be enough to get you an exam. I see VA make mistakes in that arena a lot.

Jenna: Yeah.

Mike: And I think it’s really important to make sure that VA is adjudicating all potential theories of service connections. And so we’ve outlined a number of them here. Direct, secondary, presumptive. VA oftentimes makes a mistake and will only adjudicate one of those or take a look and consider one of those, when in reality, maybe a veteran is entitled to have, well, for sure, the veterans entitled to have all theories considered. But maybe there are multiple avenues that legitimately a veteran can raise as being entitled to service connection. So VA really should look at all of those and consider all of those in considering your claim.

Christian: Absolutely

Jenna: Ok. Any final thoughts before you leave.

Mike: I would. You know, I always emphasize the importance of lay testimony, buddy statements are really important, especially as we said, when we’re trying to show it in-service event.

And so, you know, just because something is necessarily not documented in your medical records doesn’t mean you’re completely out of luck. And so just keep that in mind.

Christian: We highlight this a lot. But go to your exam.

Jenna: Yes.

Christian: You know, people may be veterans, may be frustrated with the VA. They may be frustrated with the medical facilities. That’s understandable. But make sure that you go to your examinations. They’re incredibly important, and there are rules that the VA has that if you skip your examinations, they can deny your claim without nothing more or just change the rules that they have to, like, what evidence they can look at. Things like that. So going to your exam is very, very important.

Jenna: Yeah. I think, you know, going off of your point about these rules and, you know, most the time veterans, when they’ve gotten to even the exam, part of the appeal, they’ve put in a lot of time and effort

Mike: Yeah, absolutely.

Jenna: And their appeal has been pending for at least a few years. And so you don’t really want to give up all that time just by not going to an exam. And I think, you know, pay you back enough of that thought. It’s just really important to make sure that when you’re filing claims and you’re going to exams here, you’re talking to a rep, whether that’s a veterans service organization or a private attorney or anyone who, kind of, has familiarity with this area of law.

You know, I think that today’s discussion really demonstrated how complicated it is

Mike: Yeah.

Jenna: And how many different ways that there are to get service connections for sleep disorders. And so, you know, we want to make sure that you’re best prepared in order to give you the best shot at getting your compensation. So thank you for joining us today. Again, my name is Jenna. I’m here with Christian and Mike. And we’ll see you next week.