Ask the Attorney Series: Why Sleep Apnea Claims Get Denied

0:03Leah Bucholz Hey, guys. It's Leah Bee here from Prestige Veteran Medical Consulting. I'm a US Army veteran, physician assistant, and former C and P examiner. So today, we have Rebecca Deming on from ProVet Legal. She's a accredited VA attorney out of Florida.

0:15 Her and her team, are wonderful and assist veterans everywhere. For but for those of you guys who don't know her, Rebecca, can you tell our audience a little bit about yourself?

0:26Rebecca Deming Sure. Thanks for having me on, Leah. My husband was in the Navy, and we actually met in Afghanistan. And for a number of years, I worked side by side with with military members, NATO, and UN peacekeepers on the human rights and civilian aspect of of training. And in in the past decade, I became accredited with VA when my husband got out of the Navy.

0:55 And five years ago, founded ProVet Legal, which we now have four attorneys. At the time this airs, we may have five. We're waiting for our our law clerk to get her bar results. But, yeah, we we have a passion for helping veterans get the benefits that that they deserve.

1:16Leah Bucholz Well, thanks again for being here. And today, we're gonna just jump right in to our ask the this is our ask the attorney series that we're doing. So we're gonna talk about sleep apnea and why sleep apnea claims get denied. So, Rebecca, in your opinion, why are sleep apnea claims denied so often?

1:35Rebecca Deming I think sleep apnea claims are denied because people don't put enough effort or they don't fully understand how the Nexus piece of of it works. And just because somebody if they weren't diagnosed in service or they didn't have symptoms in service, but they have a buddy who had some other condition, got sleep apnea service connected secondary to that one, they're just like, well, everybody who has PTSD should get sleep apnea, or everybody who has rhinitis should get sleep apnea or something. You know? And that's it's a lot more nuanced and a lot more fact specific for the symptoms that that individual is experiencing. And so without doing that development, the claims kind of fall short, and VA can't connect the dots and and grant service connection for sleep apnea.

2:33Leah Bucholz So what do you think the biggest misconception veterans have about sleep apnea claims is? I

2:42Rebecca Deming think one of the biggest misconceptions is that just because you have a diagnosis, VA is gonna give you disability benefits. I hear all the time, I have a CPAP machine. I don't understand why VA isn't paying me disability benefits. And it goes back to I I sometimes I feel like a broken record, but know people don't always hear all of the the upsets that we did together. But you need to have a current diagnosed disability, something that happened in service, and some connection between the two, the Nexus piece.

3:17 And and I forgot what the the question was, but if any of those pieces are missing, be able we'll deny the claim.

3:29Leah Bucholz So what kind of evidence do you think makes sleep apnea stronger or or supports it?

3:37Rebecca Deming So if you're trying to show that something started in service, I mean, obviously, it's great if you got a diagnosis in service. If if that's the case, then there's a pretty good chance that you won't even need this episode. Go ahead and file your claim, and and there's a good chance the agent's gonna grant it right away. But if you weren't diagnosed in service, building those personal statements and lay statements from people who saw you sleeping, heard you sleeping, witnessed apnea events in service, that's gonna be really, really important to kind of establish that timeline of when the symptoms first started to manifest. So just because you weren't diagnosed in service doesn't mean you can't, get a disability, but you're gonna have to do the work to to show, to show VA credibly when symptoms first started.

4:34Leah Bucholz So how important do this is a big kinda topic here. We've done a lot of videos on this, but how important do you think obesity is in sleep apnea?

4:45Rebecca Deming I think it's huge, but it can also be kind of a a red herring, because there are people who get sleep apnea who don't have obesity. Mhmm. But I know that one of the number one causes for sleep apnea is obesity, and there's a lot of things that can contribute to and cause obesity. Orthopedic conditions can prevent you from working out. Mental health conditions can impact your your workout cadence, can impact your eating, your caloric intake.

5:23 There's a lot of things that can be related to service that can contribute to significantly contribute to obesity and which can eventually lead to sleep apnea. So if you have sleep apnea and obesity, that's often where we wanna go a lot as as far as kind of our strategy for approaching a case, unless there's some, you know, facts in your medical history that maybe you developed sleep apnea symptoms before you became obese. Mhmm. We see that sometimes. So in that case, we we wouldn't we wanna kind of untangle it because the obesity wouldn't be the cause of the sleep apnea if you had it before.

6:01 Maybe it aggravates it. But, yeah, I think I think obesity can be really, really important for sleep apnea claims. That said, if if you have someone who's not obese, who develops sleep apnea, I think it kind of threw VA for a loop because they're so used to obesity being the main cause of it that they're like, well, who knows what caused it? It's not it's not obesity. We have no way of knowing.

6:29 And and they're they're kind of not doing their job of pulling it apart and looking at the the risk factors that are specific to that veteran.

6:38Leah Bucholz So kinda going back to, that service connection itself, do you think that if a veteran is diagnosed many years after service, it makes it harder? Can they still win? What are your thoughts on that?

6:55Rebecca Deming Yeah. I I think a lot of veterans don't get diagnosed in service. Maybe they didn't realize that it was a condition. It's just you know, you think it's just snoring. You think you're just tired because because you're working hard.

7:06 You don't recognize the symptoms in service. Obviously, it makes it harder. If you have a diagnosis in service, that's kind of the the easy connection. But if you were diagnosed many years after service, it's kind of like a forensic you know, we're we're gonna be investigators, and we're gonna look at your your medical history. If you're working with Leah too, we'll we'll look at it with Leah, your with your treating doctors, but we're gonna try to piece it piece it together and figure out what could be causing your sleep apnea.

7:37 And, again, if it's obesity, we'll look at the timeline of obesity. I mean, if you've been obese for two decades and then suddenly develop sleep apnea Mhmm. I actually I'd probably reach out to you, Leah, and say, do you think it can you know, can it can long term BC or you know, what would be the timeline that you would expect symptoms to develop and and align that with that person's medical history? Mhmm.

8:01Leah Bucholz So do you think that having a CPAP machine improves the chances of approval for some veterans?

8:07Rebecca Deming Having a CPAP machine is kind of the it's just an indication that you have a current diagnosis. Mhmm. We've we've talked about it before. I know you've talked about it on prior episodes. But, typically, if you have a diagnosis of sleep apnea, most of the time, doctors are going to prescribe some sort of treatment for it.

8:33 And a lot of times, that's gonna be a CPAP machine. So if you have a CPAP machine, congratulations. You have sleep apnea. And and now we need to show what that connection is to service.

8:46Leah Bucholz So what kind of mistakes do you think veterans make when they're filing claims for sleep apnea or before filing their claims? What kind of mistakes do you see them make?

8:56Rebecca Deming I think one of the biggest mistakes because it can take a while to get into a a sleep clinic. It can take a while to get the results from your sleep study and get prescribed a CPAP machine. I think a lot of times people wait to file a claim until they know all the details. It doesn't hurt anything. It's not it's not fraudulent if you file a claim because you think you might have symptoms.

9:21 And then later, if you find out that, hey. It was just insomnia. You don't have sleep apnea. Maybe just snore a little bit. It's not it doesn't rise to the level of sleep apnea. You can withdraw that claim. But getting it started earlier, if and when it finally gets diagnosed and service connected, you're gonna get more back pay. And I know we've kind of talked about there's potentially some changes in the way the VA rates it in the pipeline. And so getting that claim in earlier is gonna potentially help you be grandfathered in under the the current regulations. And so it's it's better to start now even if you don't have a diagnosis yet and file your claim and then talk to your sleep clinic and or your primary care doctor and get a referral for a sleep clinic.

10:10 So I I think that's one of the biggest mistakes that we see is people waiting because it and, you know, and then not only do you have to get scheduled, but you're gonna have to align it with your calendar because you might have to go in and spend the night in the sleep lab to get the diagnosis. And so people say, oh, well, I, you know, I can't do it this week. It's a hectic week with work. I'm gonna push it out a month or two. It can take a while to get that diagnosis.

10:37Leah Bucholz So in your opinion, when do you think a veteran should consider speaking with an attorney or, you know, a VSO or a accredited legal professional?

10:48Rebecca Deming With sleep apnea, if your symptoms well, if you ever get denied for a claim, it's probably a good time to start talking to an attorney to figure out why you got denied. I mean, unless you know you know, you can read the the rating decision and you understand what your next steps are. It's a it's good to talk to a a legal professional. But sleep apnea is one when it's when the theory of service connection is secondary. So we're not trying to show that symptoms started in service, but it's connected to another condition, that's one that we often see VA get wrong, VA C and P examiners get it wrong.

11:29 And so whether you talk to an attorney about that or reach out to Leah and her team or talk to your your treating doctors to get a Nexus letter to show why something is connected, sleep apnea is one that I think really benefits from a detailed individualized Nexus letter a lot more than other conditions.

11:51Leah Bucholz So if you had to give one piece of advice, or one takeaway to these veterans that are watching this, what would kind of the most the biggest takeaway from from this whole, thing on sleep apnea be for you? I hate to say advice because we're not giving advice, right, legal or medical advice. But what would your number one, takeaway be?

12:14Rebecca Deming I would say watch mostly as other videos about the symptoms of sleep apnea. And even if you don't have a diagnosis, if if those speak to you, if you say, hey. I'm going through that. Go ahead and file a claim at the same time that you're working with your care team to, to get evaluated to see if you have sleep apnea. So go ahead.

12:34 Don't wait to file. If you think you have symptoms of sleep apnea, file now. If it turns out that you're wrong and you don't have diagnosis, you can always withdraw the claim.

12:43Leah Bucholz Well, thank you so much for being here. It's always valuable info, and, everybody, please like and subscribe. Please, drop down to Rebecca's channel as well and check that out And leave us some comments, or if you have any questions or feedback on this topic, we would love to hear it. Rebecca, as always, thank you for being here.

13:05Rebecca Deming Yeah. Thank you so much, Leah. It's great to be on your show with you. Thanks, guys.

13:09Leah Bucholz Alright. See you guys next time.