Sleep Apnea Claims at the VA

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. Courtney: I think it's actually — Christian: Courtney, do you know what it
stands for? It's in the rating criteria. Christian: Oh, perfect. Courtney: 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. Courtney: It's a Continuous Airway Pressure
machine. Lindy: Perfect. So, 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 to, 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? Yes so 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 note 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 and 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? 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

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. So, 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. So, 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's 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 is 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 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 a sleep 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 nexus 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: 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
happens 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 entitle 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 if you think that your symptoms have gotten
worse or disagree with that initial service connection and non-compensable rating as well. So, 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. So, 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
a 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'd 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

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 psych 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 adjudicate 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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