How To Write A Winning Lay Statement For Sleep Apnea
Do you want to succeed in your Sleep Apnea VA Disability Claim?
In our experience, military veterans receive denials to their sleep apnea claims due to the lack of a proper “Theory of Service-Connection.”
A ‘theory of service connection’ is the Veteran Affairs’ way of explaining if sleep apnea should be:
- or secondarily connected to service; (attached to another disability you already have connected).
This article will run you through understanding and explaining the best way to make sleep apnea a service-connected condition so that you may increase your VA rating.
Above all, understand that Sleep Apnea is the most difficult claim to win within the VA claims process. So keep at it, and understand it may be a long fight.
What is a Lay Statement in a VA Disability Claim?
A lay statement provides your statement (you are a lay person) describing: “Who, What, When, Where, Why, and How” a condition should be service-connected and what the rating should be. In addition, the letter provides context for your disability. Learn more about writing lay statements in our article entitled: The VA form 21-4138 Lay Statement: What it is & how to write it.
Every statement should always include the following (no matter the condition for which you are filing):
- What are you filing for (This should include your theory of service connection)?
- Why do you believe this condition is related to military service or a current condition that is already service connected?
- What symptoms do you experience? (This should be put into layman’s terms, and should closely match what is on the Disability Benefits Questionnaire for your condition).
- How do the symptoms affect you occupationally and socially?
You must provide the VA lay statement as ‘competent evidence .’Do not try to be your own private physician (don’t self-diagnose). You may lose credibility if you make medical professional opinions… even if you are in the medical industry.
Providing theories of how the present disability is related to your current service-connected disabilities is OK, though. In other words, if you were diagnosed with sleep apnea while in service, you can state the connection for sleep apnea is due to an in-service incurrence.
You should point the examiners in the right direction and where your sleep study results are to establish service connection for sleep apnea properly.
You should also provide the date/time/medical professional that provided a medical diagnosis. Put this in a medical evidence section if required.
Understand How The VA Will Deny You in your VA Disability Claim
When claiming sleep apnea as a VA disability, you need to understand the causation of sleep apnea BEFORE YOU FILE YOUR CLAIM. This will allow you to proactively address any arguments that may lend you an unfavorable opinion. You can find a complete list of OSA/CSA/MSA causes in our article, VA Disability Ratings for Sleep Apnea.
If you smoke, your sleep apnea claim will be VERY difficult for you to connect. Likewise, if you have diabetes that is not service-connected, you will have the same difficulty connecting the diagnosis. Therefore, as part of your VA Form 21-4138, you should address these issues immediately.
You can do this via a log, or if you quit smoking over a year ago and still suffer sleep impairment, you may want to get another sleep study. Ensure your medical records note your smoking cessation.
Understand the differences between obstructive sleep apnea; and central sleep apnea and how that will affect your in-service event.
Obesity is also a very common cause of sleep apnea. However, being obese does not mean you can’t get service connected. Ensure that you have a food log, and history of your weight and BMI and attach them accordingly. (if required)
How to Write a Lay Statement To Service-Connect Sleep Apnea
Sleep apnea is a disorder that disrupts breathing patterns. It can interfere with your concentration, the quality of your sleep, and your energy levels. It can also lead to serious health issues if it is left unmanaged. Sleep apnea is often caused by obesity, affecting over 18 million American adults. The best way to approach writing a VA lay statement to service-connect sleep apnea is to understand your history and how that relates to military service.
- Start by writing down a list of your:
- Military Deployment History
- Current Service-Connected Conditions
- A timeline for when you started having sleep issues
- When you were diagnosed with Sleep Apnea
Understand Your Theory of Service Connection
Understanding your Theory of Service Connection for Sleep Apnea can make or break your VA compensation claim.
Several underlying causes can cause Sleep Apnea. First, you must put together how sleep apnea is service-connected and properly prove service connection, or your statement won’t do a thing for your claim.
You can say goodbye to your disability compensation!
Here are some of the ways to establish how sleep apnea should be service-connected:
Direct Service Connection
To go for a direct service connection, you must have been diagnosed with sleep apnea (through a sleep study) or sleep disturbances while in military service. Suppose you received a diagnosis, and it is in your service treatment records. In that case, you should use the service treatment records as medical evidence and point out where you obtained the diagnosis in your lay evidence.
The direct service connection route is the best way to establish an in-service event and is typically the most successful. When sleep apnea presents as a claimed in-service disease, there is a higher success rate. However, most veterans are not as lucky to have been diagnosed while on active duty.
Therefore, some of us must take a different route to provide sufficient medical evidence for the VA claim.
Presumptive service connection
Sleep apnea is currently NOT a presumptive condition; HOWEVER, for Gulf War Veterans, there are a few options:
- Gulf War Illness (Also known as Gulf War Syndrome) is known to cause “respiratory disorders” .”Suppose a doctor did not diagnose sleep apnea through a sleep study during the veteran’s military service. In that case, it could be claimed as “obstructive sleep apnea, claimed as sleep disturbances, to include as due to an undiagnosed illness.” This is particularly helpful if you show signs of insomnia during your exit examination from service.
Importantly, the VA adjudication manual states: “Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 38 CFR 3.317 since it is a diagnosable condition. Therefore, if claimed, sleep apnea must be considered on a non-presumptive SC basis.”
So one must be particularly weary of this theory, but it works if you have your lay evidence properly! State where the veteran served.
Did You Know that Allergic Rhinitis, Sinusitis, and asthma are all presumptive conditions if you are a Gulf War Era veteran. These are excellent to connect, and use later as a secondary condition to service connect CSA or OSA.
Secondary service connection
Secondary service connection allows the veteran to provide other service-connected conditions as the reason for the development of sleep apnea. There is much information on the internet about Sleep Apnea Secondary to Post Traumatic Stress Disorder (PTSD). Unless you understand how PTSD makes a flap in your throat relax (it doesn’t), causes loud snoring (it doesn’t), and establishes some of the other sleep apnea symptoms you may not have a shot.
Veterans have been connected with service connection secondary to PTSD, but typically it was prior to 2015, and sometimes the C&P examiner my empathize for the veterans condition. Would you personally take that risk and argue your connection, or would you prefer to go a route that makes sense?
You better get a better understanding of the condition and add the story to your lay evidence. If you go the secondary route without the proper theories attached and you will most likely lose the claim. Before you know it, you will yourself in the Veterans Appeals Process or the Federal Circuit only to lose the disability claim in the future.
Straight Secondary Service Connections
Additionally, you can look straight as the risk factors for sleep apnea. If you have any of the following conditions that are service connected, then you may want to use these as a secondary.
- Excess weight. (See obesity as an intermediate step)
- Narrowed airway.
- High blood pressure (hypertension). Obstructive sleep apnea is relatively common in people with hypertension.
- Chronic nasal congestion. Obstructive sleep apnea occurs twice as often in those who have consistent nasal congestion at night, regardless of the cause. This may be due to narrowed airways.
- Diabetes. Obstructive sleep apnea might be more common in people with diabetes.
- Asthma. Research has found an association between asthma and the risk of obstructive sleep apnea.
- **Source Mayo Clinic
Obesity As An Intermediate Step
There is also the capability to connect sleep apnea based on weight gain. Walsh v. Wilkie defines where the veteran may have other service-connected disabilities that caused the increased weight. The service connection theory should be: “Sleep Apnea Secondary to XXX Condition With Obesity As an Intermediate Step.”
You are not claiming obesity with this theory. The service-connected disability (such as PTSD) can be used as an intermediate to show that PTSD causes obesity due to not working out….thereby causing obesity. Intermediate step connections are a valid way to service connect sleep apnea secondarily; however, many examiners and VA raters are unaware that veterans’ claims can service connect in this manner.
Understand what Medical Evidence You Require for Your Sleep Apnea VA Claim
If you can get one from your doctor, get a private medical opinion on how your disease is connected. DO NOT PAY FOR A MEDICAL NEXUS OPINION! (You may have pay for a nexus as a last resort, but this is typically not a place to start).
The VA will most likely disregard the medical opinion (private medical opinion), and you are out hundreds of dollars just to get denied Veterans Affairs Benefits. Even if competent medical evidence, a private examiner’s opinion is weighted very low in the lower ranks of the VA claims process.
The new VA Appeals Modernization Act allows new and relevant evidence to be enough to continue the claim. That doesn’t always mean needing a nexus statement/opinion.
If you aren’t already diagnosed with Sleep Apnea get a sleep study. Without a diagnosis, you will get nowhere with your claim. To understand if you may have sleep apnea look at the symptoms below, and if you suffer any of these, get a sleep study ASAP.
- Example Symptoms:
- Loud snoring
- Excessive Daytime Sleepiness
- Morning Headaches
- Episodes when you stop breathing during sleep — (Reported by a spouse or other person)
- Gasping for air during sleep
- Excessive daytime sleepiness (hypersomnia)
- Difficulty paying attention while awake
- More can be found at MayoClinic.org
- Example Symptoms:
Tips for Preparing the Information for the Lay Evidence
Your healthcare provider can provide you a copy of your diagnosis. Include any of this with the lay evidence. You can also talk to people who know you well and know your daily apnea experiences.
Essential things to include with your lay evidence:
- Provide the diagnosis as relevant evidence
- Provide the theory of service connection (event or aggravation in service)
- Show any additional information, such as logs, CPAP usage, etc., with your packet.
Preserve Your Argument for Potential Under Rating For Sleep Apnea
If you have been diagnosed with sleep apnea and want a service connection, the VA will probably examine you to confirm the diagnosis. The Blue Cord Patriots sometimes see where the VA rates hypersomnolence (30% VA disability rating) versus the actual rating for using a CPAP which is 50%.
If you have sleep apnea, a hypersomnolence rating is an under-rating. Your disorder is considered less severe than what you’ve claimed. To preserve your argument, you can collect medical and other evidence proving the extent of your symptoms. (Such as using a CPAP). The evidence can include medical records, lab results, prescriptions, and the reports of people who have observed and interacted with you while you had sleep apnea.
You can also ask your healthcare professional to write a letter explaining the severity of your symptoms. The letter should focus on specific details that support your claim, such as the frequency and length of your symptoms or adverse side effects you’ve experienced.
Get Corroborating Evidence From People Who Know About Your Sleep Apnea
If the VA examiner was not involved with your sleep apnea syndrome treatment, it might be helpful to gather testimony from others who know about your sleep apnea. Including but not limited to your healthcare provider, family members, and friends. You can ask them to write a letter to the VA examiner confirming your symptoms and the severity of your sleep apnea. The letters can help the C&P examiner verify your condition and decide your rating.
Putting Together The 21-4138 Lay Statements For Sleep Apnea
In your provided lay evidence and statements, you’ll want to briefly outline your symptoms, how they’ve affected you, and how they are connected to sleep apnea.
An Example Personal Statement For Sleep Apnea:
DISCLAIMER: The following example should not be copied or used except for guidance. The guidance below is how to put the information together in this article. Do not use this example lay statement, as it is immoral, illegal, and unethical.
For What Condition Are You Filing A VA Claim?
I am filing for sleep apnea secondary to my physical conditions with obesity as an intermediate step. (Please see Walsh v. Wilkie, Feb 24, 2020, 32 Vet.App. 300 (2020) to understand this theory of service connection. ‘The Court of Appeals for Veterans Claims (Court) opinion in Walsh holds that one of intermediate steps in the chain of secondary service connection may be aggravation of the Veteran’s obesity, not just the causation of obesity. The Walsh opinion case is helpful to Veterans because they often seek service connection for conditions that are secondary to obesity. As a general rule, under existing VA guidelines set by VA’s Office of the General Counsel, VA will not grant service connection for obesity by itself. However, with the Walsh opinion, obesity may be used as an “intermediate step,” or link in the causal chain, to establish that another condition is service-connected’
Why Do You Believe Sleep Apnea Should Be Service Connected
I am currently service connected for my neck (10%) , back (10%), pes planus (flat feet) (30%). I have been steadily been gaining weight since my event in service (see below graph of my event and weight gain). I do not smoke, I do not eat candy, and I have a nutritionist whom advises me on my diet (see attached medical treatment records). After all of this, I have difficulty exercising due to the pain of my current conditions. This is logged in detail in my current medical records.
**Chart 1**Justification for obesity as an intermediate step.
What Symptoms Do You Experience?
Sleep Apnea affects my life. Even when I wear my CPAP, but my Apnea-Hypopnea Index (AHI) still hovers between the 4-6 range per the app that the VA provided with the ResMed CPAP Machine. I am fatigued during the day, and still receive occasional headaches in the morning.
How Do The Symptoms Affect You Occupationally and Socially?
The symptoms that I experience due to my apneas are still apparent in my work. I often am tired and cannot concentrate. I am currently have reasonable accommodations provided by my corporation allowing me to rest during the day due to my disabilities.
This inevitably will not allow me to get any promotions due to my disability. My spouse also feels the affects, as we rarely go out due to my fatigue.
End of Example Lay Statement
Lay evidence helps the VA Claims process understand your current disability and how the sleep apnea relates to your active duty service. For example, you can state that you cannot pursue substantially gainful employment due to sleep issues. Ultimately, this should lead to a C&P exam that results in a medical nexus opinion. The opinion will provide a favorable medical opinion for your VA sleep apnea claim. The favorable opinion will lead to VA disability benefits and a VA rating for the veteran’s sleep apnea, ultimately leading to a rating of 50 or 100%, increasing your disability compensation.
Understanding your symptoms can help develop your case and understand how your lay evidence depends on an excellent solid claim. For example, if you’ve been diagnosed with sleep apnea, you can use a piece of lay evidence to explain your experience and make a case for disability compensation.