Top 3 Ways to Prove Service Connection for Sleep Apnea (Most Likely Cause ‘MLC’ Technique)

Brian Reese | Posted on October 28, 2020 |

While trying to prove service connection for Sleep Apnea might seem as elusive as a four-leaf clover, in today’s post, I’m sharing an expert level technique that can help you get your VA sleep apnea service connected, regardless of past denials.

It’s called the Most Likely Cause (MLC) Technique for your VA Sleep Apnea claim, and it works like magic.

The MLC Technique relies on you to map-out the most likely causation factors of your Sleep Apnea in a simple, 6-step process.

It’s kind of like the “choose your own adventure” books you may have read as a kid.

So, strap-in, and let’s start our journey to learn how to service connect your VA Sleep Apnea claim.

You may also be interested in the following Blog posts about Sleep Apnea VA Claims:

Top 3 Reasons Why VA Claims for Sleep Apnea Get Denied

To begin, we must get inside the VA claim process to understand “WHY” the VA keeps denying your claim for Sleep Apnea.

In our experience, it comes down to 3 factors:

#1. No Sleep Study
#2. No current medical diagnosis of Sleep Apnea
#3. No way to prove service connection under the law

But don’t worry – there are some simple strategies you can employ to overcome these 3 factors, even if the VA has already denied your VA claim for Sleep Apnea.

Okay, a couple things to keep in mind as we proceed:

Remember that the burden of proof in all VA disability compensation claims rests with the claimant – YOU as the Veteran.

The good news is that the standard of proof for VA claims is relatively low, and only requires the claimant (you) to prove that their Sleep Apnea VA claim is “at least as likely as not” caused or made worse by their military service OR by another service connected condition for secondary service connection.

How to Prove Service Connection for Sleep Apnea: The 6-Step Most Likely Cause (MLC) Technique

Step #1: Get a NEW Sleep Study (within the past 12 months)
Step #2: Confirm a medical diagnosis of Sleep Apnea with a sleep specialist
Step #3: Conduct a Sleep Apnea “Gap Analysis” to include medical research and case law precedent
Step #4: Determine Direct Service Connection vs. Secondary Service Connection
Step #5: Obtain a Nexus Letter for Sleep Apnea
Step #6: Get at least one VA Buddy Letter for Sleep Apnea

Step #1: Get a NEW Sleep Study (within the past 12 months)

Truth bomb: Just because you snore doesn’t mean you have Sleep Apnea.

It’s certainly a marker though.

Some other common symptoms of Sleep Apnea include: Trouble staying asleep at night (waking up often), episodes where you stop breathing (ask your partner), daytime sleepiness (hypersomnia), morning headaches, dry mouth, difficulty concentrating, and anger (irritability).

If you have any of these signs and symptoms, you should consider doing a Sleep Study, which is also known as a Polysomnography.

Even if you’ve had a Sleep Study before, we recommend having a current one on-file, which will confirm a medical diagnosis and current symptoms, especially if they’ve become more severe over time.

A Sleep Study is THE ONLY WAY to confirm whether you meet the clinical diagnostic criteria for Sleep Apnea.

The Polysomnography study records your brain waves, the oxygen level in your blood, heart rate and breathing, and eye and leg movements, among others.

So, now you might be wondering, how do Veterans get a Sleep Study?

There are 3 primary ways for Veterans to get a Sleep Study:

The first way is to discuss your sleep issues with your VA primary care doctor and ask for a referral to a sleep specialist at the VA.
The second way is to ask your private doctor for a referral to a sleep specialist in your area (this is a good option if you have private health insurance).
The third, and easiest way, is to order a Sleep Apnea At-Home Test Kit, although it’ll cost you a couple hundred dollars or more (*This is NOT a referral link and we don’t recommend a specific company for a Sleep Study. We have used this company before with solid results and great customer service).

Step #2: Confirm a medical diagnosis of Sleep Apnea with a sleep specialist

Once you’ve finished your Sleep Study, it’s important to review your results with a sleep specialist.

It’s crucial to review your Sleep Study results in detail, specifically, to confirm whether you have a medical diagnosis of Sleep Apnea.

By far, the most common Sleep Apnea syndrome in Veterans is called Obstructive Sleep Apnea (OSA).

Did you know Veterans are nearly 4x as likely to have Obstructive Sleep Apnea (OSA) as the average civilian population?

A quick note: According to medical research, the most common cause of Obstructive Sleep Apnea (OSA) is WEIGHT GAIN / OBESITY.

This is really important!

Why?

Because weight gain / obesit is the #1 most common reason why the VA denies Sleep Apnea claims.

The C&P examiner’s will write some ridiculous denial such as, “It’s ‘less likely than not’ that the Veteran’s Sleep Apnea is due to their military service. The most likely cause is weight gain / obesity, which occurred after they left the military. The Veteran has a BMI above 30.”

BUT, did you know Obesity can be used as an “Intermediate Step” to service connect Sleep Apnea as a secondary claim?

As I’ve explained before, the trouble with the C&P exam system is that medical providers are used to applying “medical certainty” principles to evaluate probability.

However, the VA rating system is supposed to be “non-adversarial” and NOT based on “medical certainty.”

The concept of “medical certainty” is a much higher standard of proof than is required for a claimant under the VA disability system.

Remember that the “at least as likely as not” standard required under VA law means that a claimant must only persuade a decision-maker that the Veteran’s Sleep Apnea is 50/50 due to military service or another disability condition rated at 0% or higher for secondary service connection.

In our experience, many C&P examiners and VA Raters don’t even know the legal standards of proof in a VA claim and they get this wrong ALL THE TIME—and it’s shameful.

Step #3: Conduct a Sleep Apnea “Gap Analysis” to include medical research and case law precedent

In this step, you’ll want to conduct a gap analysis of your VA Sleep Apnea disability, to include the approximate timeframe (month and year) that your symptoms began.

If you have your Service Treatment Records, go through them in detail, and look for any complaints or symptoms related to Sleep Apnea.

If you did have a Sleep Study on active duty, and you have a diagnosis in your Service Treatment Records, make sure to annotate this in your Lay Statement for Sleep Apnea.

In our experience, however, most Veterans didn’t do a Sleep Study during the military, which is critical to note prior to moving onto Step #4.

The final part of Step #3 is to conduct some Google Searches of medical research and BVA case law decisions for your VA Sleep Apnea claim.

If you’d like to save some time and effort in your research, you can download my FREE eBook, which includes medical research studies and BVA cases for Sleep Apnea:

You’ll learn 3 critical things about service connection for Sleep Apnea:

HOW to get your Sleep Apnea VA claim service connected (even if you’ve already been denied…)
DISCOVER 50+ conditions linked to Sleep Apnea and WHY the word “aggravated” may be key for you!
BONUS! FREE video explains how to WIN, and SERVICE CONNECT Sleep Apnea in LESS TIME!

>> Click HERE to download “The Insider’s Guide to VA Sleep Apnea Claims!”

Step #4: Determine Direct Service Connection vs. Secondary Service Connection for Sleep Apnea

In Step #4, you’ll want to make the call on Direct Service Connection versus Secondary Service Connection.

In our opinion, the only time a Veteran should pursue Direct Service Connection for Sleep Apnea is IF and ONLY IF you did a Sleep Study while on active duty, which confirmed the presence of a Sleep Apnea condition (medically diagnosed).

Direct Service Connection Requirements

Direct Service Connection (SC) means that a particular disease or injury was incurred in service.

This is accomplished by affirmatively showing inception during service.

There are three components to proving Direct Service Connection:

A current disability (medical diagnosis in medical records)
An event, injury, or disease in service, and
A link or nexus establishing that the current disability had its onset or inception in service, which may be established by evidence of
- Chronicity and continuity, or
- Continuous symptoms or a medical nexus opinion.

All pertinent or relevant medical and lay evidence must be considered, including the service records (which may show the places, types, and circumstances of service and the official history of the organization in which the Veteran served).

For the legal principles of direct service connection, see 38 CFR 3.303.

Secondary Service Connection Requirements

In our experience, if you did NOT have a Sleep Study while on active duty and you did NOT get a medical diagnosis of Sleep Apnea in the military, you should attempt to service connect your Sleep Apnea VA claim SECONDARY to another service-connected disability.

Secondary Service Connection (SC) may be awarded to a claimant for the following under the provisions of 38 CFR 3.310(a) and 38 CFR 3.310(b):

Disabilities that are proximately due to, or the result of, an SC condition, or
The increase in severity of a Non-Service Connected (NSC) disability that is attributable to aggravation by an SC disability, and not to the natural progression of the NSC disability.

Secondary Service Connection requires a “showing of causation.”

Sleep Apnea Secondary Claims (New Tips in 2021)

Service connection on a secondary basis requires a showing of causation.

A showing of causation requires that the secondary disability be shown to be “proximately due to” or “proximately aggravated by” another service-connected disability.

By law, there are three evidentiary elements that must be satisfied for sleep apnea secondary conditions to prove secondary service connection:

A medical diagnosis of sleep apnea confirmed by a sleep study in VA medical records or private records (sleep study in past 12 months)
Evidence of a service-connected primary disability (such as PTSD, depression, anxiety, sinusitis, rhinitis, weight gain), AND
Medical nexus evidence establishing a connection between the service-connected disability and the current disability

The first part can be satisfied with any existing medical evidence in service treatment records, VA medical records, or any private medical records, assuming you do have Sleep Apnea diagnosed.

The second part can be satisfied with a Veteran’s existing service-connected disability rated at 0 percent or higher.

The third part can be satisfied with a VA Nexus Letter from a qualified medical professional.

>> Trying to service-connect Sleep Apnea Secondary to PTSD? Click HERE to read now.

Step #5: Obtain a Nexus Letter for Sleep Apnea

In Step #5, you’ll want to get a Nexus Letter for Sleep Apnea from a credible independent medical professional.

A Nexus Letter for Sleep Apnea is an evidence-based document prepared by a medical professional that helps to establish a “connection” between the veteran’s current disability and either their military service or another disability condition for secondary service connection.

A Nexus Letter is often the missing link, aka, the “essential” piece of evidence needed to help a veteran get his/her VA sleep apnea service connected.

So now I’ve probably got you wondering: “Brian, why are nexus letters so effective at proving service connection under the law?”

Awe yes, I’m glad you asked.

Simply put, it’s because VA disability claims are won or lost based on medical evidence.

Either you have enough medical evidence, or you don’t.

In our experience, a well-crafted Nexus Letter for Sleep Apnea is the single most crucial document a veteran can provide the VA Rater to help prove service connection on an “at least as likely as not” basis.

Yep, it really is the single, most powerful way to prove service connection.

Why?

First, a credible Nexus Letter fulfills the third legal pillar of secondary service connection for Sleep Apnea mentioned above.

A Veteran must provide medical nexus evidence establishing a connection between the service-connected disability and the current disability (Sleep Apnea).

Second, a VA Nexus Letter for Sleep Apnea is the Independent Medical Opinion of a private medical professional, and can influence the C&P examiner’s medical opinion, as well as the VA Rating Official’s final disability decision, assuming the medical nexus evidence provided in the letter has probative value.

If you’re wondering “How to Get a Nexus Letter for Sleep Apnea,” we’ve made a list of the Top 5 Doctors Who Write Nexus Letters for Sleep Apnea.

Step #6: Get at least one VA Buddy Letter for Sleep Apnea

In the final step, Step #6, you’ll want to obtain at least one Lay Statement, aka “Buddy Letter” to support your VA claim for Sleep Apnea.

A VA Buddy Letter is simply a credible Statement in Support of a Claim, written by a competent individual 18 years of age or older, who has direct, first-hand knowledge of an event or injury, and offers an account of what they witnessed or are witnessing in support of a veterans VA disability claim.

These lay statements can be from a fellow service member, spouse, friend, pastor, co-worker, boss, adult child, or any other competent and credible adult witness.

A Buddy Letter can be the linchpin to winning your VA disability claim.

Why?

Because a Buddy Statement constitutes “lay evidence” under the law, which simply means “after the fact” evidence written by a competent lay person (not an expert) 18 years of age or older who does NOT have any specialized education, training, or experience.

The Rating Veteran Service Representative (RVSR) at the VA MUST consider a buddy letter because it’s considered a secondary source of evidence in support of your VA disability claim.

When writing or obtaining a buddy letter for Sleep Apnea, you can simply use the VA Form 21-4138, Statement in Support of a Claim.

A great VA buddy letter is short, simple, and factual to the best of the knowledge and belief of the writer.

Think LESS is MORE.

VSRs and RVSRs are super busy people, so you want to give them the exact information they need, at the moment they need it, to help support a Veterans VA disability claim for Sleep Apnea.

What should you include in a Buddy Letter for Sleep Apnea?

In 3-4 paragraphs, you should explain (1) Your name, information, and how you know the veteran. (2) What you witnessed or are witnessing regarding the Veteran’s sleep apnea claim (e.g., did you hear the Veteran snore loudly and/or stop breathing?), (3) the Veterans’ current symptoms of Sleep Apnea and how the condition affects him/her daily (e.g., are they tired all-the-time and does he/she require the daily use of a CPAP machine?), and (4) Sign and date your name to the best of your knowledge and belief.

WATCH: VA Sleep Apnea Secondary Claim SECRETS

WATCH: VA Secondary Claims for Sleep Apnea

Do You Need Help with Your VA Claim for Sleep Apnea?

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About the Author

Brian Reese is a VA benefits expert, former military officer, and founder of VA Claims Insider – “The Most Trusted Name in Education-Based Resources for Veterans.”

His frustration with the 8-step VA disability claims process led him to create “VA Claims Insider,” which provides U.S. military veterans with tips, strategies, and lessons learned to win their VA disability compensation claim in less time.

Brian is also the CEO of Military Disability Made Easy, which is the world’s largest free searchable database for all things related to DoD disability and VA disability, and has served more than 6,000,000 military members and veterans since its founding in 2013.

He is a former active duty Air Force officer with extensive experience leading hundreds of individuals and multi-functional teams in challenging international environments, including a combat tour to Afghanistan in 2011 in support of Operation ENDURING FREEDOM.

Brian is a Distinguished Graduate of Management from the United States Air Force Academy, Colorado Springs, CO and he holds an MBA from Oklahoma State University’s Spears School of Business, Stillwater, OK, where he was a National Honor Scholar (Top 1% of Graduate School class).

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