IN THE CASE OF: BOARD DATE: 7 December 2021 DOCKET NUMBER: AR20210005675 APPLICANT REQUESTS: entitlement to Combat Related Special Compensation (CRSC) for obstructive sleep apnea. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-Authored letter in lieu of DD Form 149 (Application for Correction of Military Record) * Recommendation for Meritorious Service Medal * Air Assault School Certificate * Deployment Orders * Combat Action Badge Orders * Enlisted Record Brief (ERB) * Sleep Study Report * CPAP Prescription * DD Form 214 (Certificate of Release or Discharge from Service) * 2 X Department of Veteran Affairs (VA) Rating Decision * Claim for CRSC * CRSC Reconsideration Request * Army Human Resources Command (HRC) Letter CRSC * Letter of Support * Verification Statement * Article on Association of Psychiatric Disorders and Sleep Apnea * Article on Obstructive Sleep Apnea and Post-Traumatic Stress Disorder (PTSD) * Article on Sleep Events among Veterans with Combat-Related PTSD * Article on Sleep Disorders in US Military Personnel * Pictures of computer screen FACTS: 1. The applicant states, in effect, he disagrees with the decision on his obstructive sleep apnea regarding CRSC. He asks the Board to review the documents he provided supporting his claim that the obstructive sleep apnea is a residual disability of his PTSD and traumatic brain injury (TBI) diagnosis. He asks the Board to review the PTSD and TBI decision letter indicating his chronic sleep impairment. The PTSD, TBI, and obstructive sleep apnea are directly linked to the 3-5 improvised explosive device (IED) attacks on 10 April 2005. He had no obstructive sleep apnea/chronic sleep impairment prior to the IED attack on 10 April 2005. He respectfully requests the Board grant his CRSC for obstructive sleep apnea based on the VA decision letter and the medical doctor's examination results. 2. On 28 January 1983, the applicant enlisted in the Regular Army and entered active duty for a period of 3 years. He had reenlistments on: * 30 October 1985, for 4 years * 25 June 1990, for 4 years * 9 December 1998, for 6 years * 23 May 1993, for an indefinite period of time * 9 December 1993, he extended his enlistment for four months 3. On 31 January 2008, the applicant was honorably retired from the Army. His DD Form 214 shows he had service in: * Kosovo from 2 August 1999 to 1 October 1999 * Bosnia from 21 August 2002 to 20 August 2003 * Kuwait from 5 January 2003 to 15 June 2003 * Iraq from 20 September 2005 to 10 September 2006 4. On 11 May 2020, the applicant received a letter from HRC, stating they reviewed his claim for CRSC and approved his claim for PTSD at 50 percent but denied his claim for: * Obstructive sleep apnea * Degenerative Arthritis of the left and right ankle * Degenerative Arthritis of the left acromioclavicular joint * Degenerative Arthritis of the right acromioclavicular joint * Degenerative Arthritis of the left and right elbow * Degenerative Arthritis of the left and right knee * Bilateral Pes Planus and Degenerative Arthritis of the right foot * Gastesophageal Reflux Disease * Temporomandibular Joint Dysfunction * Erectile Dysfunction 5. On 15 June 2020, the applicant received a letter from HRC stating they reviewed his reconsideration request and did not change his CRSC status. For his obstructive sleep apnea the Department of Defense (DoD) and the VA determined the disability was not caused by combat related events or environments. 6. On 28 August 2020, the applicant received a letter from HRC, stating the CRSC program had completed processing his appeal. After carefully reviewing the available documentation they were unable to award his obstructive sleep apnea. On 11 May 2020, they responded to his initial application where he was awarded 50 percent for PTSD. His claim had been processed at the initial, reconsideration, and appeal levels. They considered this their final determination. 7. On 25 March 2021, the applicant received a letter from HRC, stating they reviewed his reconsideration for CRSC and approved his claim for PTSD with Residuals of TBI and changed his percentage to 70 percent effective July 2020. All other requests for CRSC were unable to be verified as combat-related disabilities. 8. On 23 July 2021, the applicant received a letter from HRC stating they reviewed his reconsideration for CRSC and approved his claim for PTSD at 70 percent effective July 2020 and Tinnitus at 10 percent effective May 2021. All other requests for CRSC were unable to be verified as combat-related disabilities. 9. On 20 September 2021, the applicant received a letter from HRC stating they reviewed his reconsideration for CRSC approved his for PTSD at 70 percent effective July 2020, Tinnitus at 10 percent effective May 2021, and Allergic Rhinitis at 0 percent effective May 2014. All other requests for CRSC were unable to be verified as combat- related disabilities. 10. The applicant provides the following documents, not contained in his service record, for the Board's consideration: a. A Recommendation for Award of the Meritorious Service Medal for meritorious service as a logistician in support of operations and training missions. The award was approved on 10 March 2000. b. A certificate showing he completed Air Assault School on 13 June 2005. On 13 June 2005, he was awarded the Air Assault Badge. c. On 5 August 2005, orders were published deploying the applicant in support of Operation Iraqi Freedom proceeding on or about 20 September 2005 for a period of up to 365 days or until completion of the mission. d. On 29 January 2006, permanent orders were published awarding the applicant the Combat Action Badge for being engaged or engaging the enemy on 10 December 2005. e. His ERB, which shows his duty assignments, deployment dates, promotions, awards and decorations, and military education courses. f. A sleep study, dated 21 June 2007, which shows the applicant's sleep efficiency was 79.7 percent. A prescription for a CPAP machine, dated 22 June 2007. g. A VA rating decision, dated 15 April 2008, which shows he had the following service connected disabilities, effective 1 February 2008: * PTSD at 50 percent * obstructive sleep apnea at 50 percent * dyshidrotic eczema at 30 percent * degenerative arthritis of the thoracic spin with chronic lumbar strain at 20 percent * chronic prostatics at 20 percent * degenerative arthritis of the left and right acromioclavicular joint at 10 percent each * degenerative arthritis of the left and right knee at 10 percent each * migraine headaches at 10 percent * temporomandibular joint dysfunction at 10 percent * chronic left and right wrist strain at 10 percent each * degenerative arthritis of the right and left elbow at 10 percent each * bilateral pes planus and degenerative arthritis of the right foot at 10 percent * degenerative arthritis of the cervical spine at 10 percent * degenerative arthritis of the left and right ankle with Achilles tendonitis at 10 percent and 20 percent * gastroesophageal reflux disease with hiatal hernia at 10 percent * allergic rhinitis at 0 percent * erectile dysfunction at 0 percent h. A Letter of support from a Colonel (COL) retired, which states: (1) He was the executive officer for the applicant during his deployment to Operation Iraqi Freedom from September 2005 through September 2006. They were deployed to Kirkuk, Iraq. (2) The applicant's convoy was attacked by three to five IEDs on 10 April 2005. Upon returning to the Forward Operating Base (FOB) the applicant was treated for a concussion, migraine headaches, and ringing in his ears. As the leader of all enlisted Soldiers, during the deployment, the applicant only desired to discuss his concussion along with his migraine headaches and treatment with the Command Team leadership and the Physician's Assistant. Throughout the remainder of the deployment, the applicant received treatment for his concussion, migraines, and tinnitus. (3) The applicant continues his treatment for migraines, TBI, memory loss, tinnitus and various other disabilities. The applicant discussed his loss of childhood memories with the COL upon his return from block leave after the deployment. The applicant's family members noticed his memory loss, which caused him embarrassment and frustration, while on block leave. The applicant felt he had to justify his deployment to Iraq with the hope of gaining their understanding. (4) The applicant's constant migraine headaches resulted in him missing scheduled Sergeant's time training, physical fitness periods, Command and Staff meetings, and Battalion formations. The command team knew when the applicant was having a migraine episode because his office lights were turned off and his door was closed. (5) The applicant and the COL often talked about the applicant's career goal to get selected as a Brigade Command Sergeant Major (CSM). The applicant decided it was time to retire after unsuccessful attempts to treat his migraines and TBI. The COL has not doubt the applicant would have been selected for a Brigade CSM position if he had not sustained injuries during the IED attack on 10 April 2005. i. A VA rating decision, dated 10 December 2020, which states service connection for TBI was granted and would be evaluated as part of his PTSD evaluation. Evaluation of PTSD with residuals of TBI, which was 50 percent, was increased to 70 percent effective 23 June 2020. j. A letter from the VA, dated 17 December 2020, verifying his service-connected disabilities. k. An article entitled, Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort, which states, in pertinent part, investigators have long explored and debated a possible link between psychiatric disorders and sleep apnea. Most studies revealed a significant association between psychiatric disorders (specifically depression) and sleep apnea. The full article is available for the Board's review. l. An article entitled, Obstructive Sleep Apnea and PSTS among OEF/OIF/OND Veterans, which states, in pertinent part, beyond the PTSD criterion symptoms of insomnia and nightmares 40 to 98 percent of veterans with PTSD also have a co- occurring sleep disturbance such as obstructive sleep apnea, periodic leg movement disorder, sleep terrors, or nocturnal anxiety attacks. The full article is available for the Board's review. m. An article entitled, Sleep Events Among Veterans with Combat-Related PTSD, which states, in pertinent part, sleep disturbances have been characterized as a hallmark of PTSD. The full article is available for the Board's review. n. An Article entitled, Sleep Disorders in US Military Personnel, which states, in pertinent part, sleep disturbances are reported in almost one-third of military personnel who have deployed in support of Overseas Contingency Operations resulting in approximately 600,000 military personnel and veterans with clinically relevant sleep conditions. The full article is available for the Board's review. o. Computer photos which show: * he was prescribed Prazosin for nightmares, sertraline for mood, and trazadone for sleep * he had PTSD symptoms with nightmares 2 to 3 times a week * his diagnosis was PTSD * he was diagnosed with TBI 11. The applicant is requesting reconsideration of CRSC for Obstructive Sleep Apnea. a. The applicant provides his VA ratings, articles regarding how sleep problems have been associated with PTSD, and a letter form a COL describing the applicant's health problems associated with an IED attack while he was deployed. b. Department of Defense Financial Management Regulation, Volume 7B, Section 630502 states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule Rating of Disabilities (VASRD). The Military Departments will determine whether a disability is combat-related based on the following criteria: * as a direct result of armed conflict * while engaged in hazardous service * in the performance of duty under conditions simulating war, or * through an instrumentality of war 12. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting they reverse the United States Army Human Resources Command’s (USA HRC) determinations that his obstructive sleep apnea is not combat related. He states: “Please review the enclosed documentation supporting my claim that the Obstructive Sleep Apnea is a residual disability of my PTSD and TBI diagnoses. Please see the attached PTSD and TBI decision letter indicating my Chronic Sleep Impairment. The PTSD, TBI, and Obstructive Sleep Apnea are directly link to the 3-5 Improvised Explosive Devices (IED) attacks on 10 April 2005. I had no Obstructive Sleep Apnea/Chronic Sleep Impairment prior to the IED attack on 10 April 2005.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 28 January 1983 and retired for length of service on 31 January 2008 under provision in chapter 12 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009). c. CRSC as described on the United States Army Human Resources Command website: “Combat-Related Special Compensation (CRSC) is a form of concurrent receipt which is paid monthly. It restores military retired pay that is offset when a Military Retiree accepts compensation from the Department of Veterans Affairs (VA) for a disability or condition that can be attributed to a combat-related event as defined by the Department of Defense (DoD) program guidance. This allows eligible Retirees to concurrently receive an amount equal to or less than their length of service retirement pay and their VA disability compensation, if the injury is combat-related.” d. Combat-related disability for CRSC is defined in 10 U.S.C. § 1413a(e) as a disability that is "attributable to an injury for which the member was awarded the Purple Heart" or was incurred "as a direct result of armed conflict," ''through an instrumentality of war," "while engaged in hazardous service," or "in the performance of duty under conditions simulating war." e. Section b(3) of 26 U.S. Code §?104 requires there be a cause and effect relationship: (3) Special rules for combat-related injuries: For purposes of this subsection, the term “combat-related injury” means personal injury or sickness— (A) which is incurred— (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war. f. In regards to his obstructive sleep apnea, the applicant stated in his CRSC application: “After the IED explosion on December 10, 2005 during a convoy while deployed Kirkuk, Iraq my vehicle was hit by 2 IEDs. I have difficulty falling asleep and staying asleep during the rest of the deployment. I would snore loudly and my sleep was interrupted frequently throughout the night. Many nights I would be woken by gasping for air. I would fill exhausted upon waking up for the day. My PA schedule me for a sleep study upon returning to Fort Campbell. After the sleep study I was diagnose with sleep apnea and given a CPAP machine. g. The applicant’s DD 214 shows he was deployed in Iraq from 20 September 2005 thru 10 September 2006. This acute onset of his insomnia is consistent with a stress reaction and not primary obstructive sleep apnea. Records show his sleep issues are now related to his PTSD. h. Review of his records in AHLTA found do encounters for or diagnosis of obstructive sleep apnea. Even though the applicant has been diagnosed and service connect by the Veterans Benefits Administration for sleep apnea, the condition is not eligible for CRSC. i. In their denial of his CRSC claim dated 11 May 2020, the CRSC Compensation Branch at the USA HRC stated: “This condition does not meet the criteria for Combat- Related Special Compensation. Currently, the DOD and VA have determined this disability is not caused by combat related events or environments.” j. As noted previously, section b(3) of 26 U.S. Code §?104 requires there be a cause and effect relationship in order to determine a condition to be combat related. The CRSC program requires corroborating documentation of which there is none in the application or AHLTA. A note in paragraph 630502 of DoD FMR 7000.14-R Volume 7B Chapter 63 CRSC confirms this requirement, stating in part: “An uncorroborated statement in a record that a disability is combat-related will not, by itself, be considered determinative for purposes of meeting the combat-related standards for CRSC prescribed herein. CRSC determinations must be made based on the program criteria.” k. It is the opinion of the ARBA Medical Advisor that a reversal of the previous non- combat related determinations for his obstructive sleep is not warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Board members noted that CRSC determinations must be made based on the program criteria. There must be a cause and effect relationship in order to determine a condition to be combat related. Board members did not find a causative relationship and voted to deny relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X: X: X: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Department of Defense Financial Management Regulation, Volume 7B: a. Section 630301 states a member may not be paid CRSC unless he or she has applied for and elected to receive compensation under the CRSC program by filing an application on DD Form 2860 (Claim for CRSC), with the Military Department from which he or she retired. A member may submit an application for CRSC at any time and, if otherwise qualified for CRSC, compensation will be paid for any month after May 2003 for which all conditions of eligibility were met. b. Section 630502 states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule Rating of Disabilities (VASRD). The Military Departments will determine whether a disability is combat-related based on the following criteria: * as a direct result of armed conflict * while engaged in hazardous service * in the performance of duty under conditions simulating war, or * through an instrumentality of war c. The Department will record for each disability determined to be combat-related which of the circumstances provided qualifies the disability as combat-related. A determination of combat-relatedness (see section 6306) will be made with respect to each separate disability with an assigned medical diagnosis code from the VASRD. A retiree may have disabilities that are not combat-related. Such disabilities will not be considered in determining eligibility for CRSC or the amount of CRSC payable. An uncorroborated statement in a record that a disability is combat-related will not, by itself, be considered determinative for purposes of meeting the combat-related standards for CRSC prescribed herein. CRSC determinations must be made on the basis of the program criteria. d. Section 6306 (Determinations of Combat Relatedness): (1) Direct Result of Armed Conflict: (a) The disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. To support a combat-related determination, it is not sufficient to only state the fact that a member incurred the disability during a period of war, in an area of armed conflict, or while participating in combat operations. There must be a definite causal relationship between the armed conflict and the resulting disability. (b) Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or with terrorists. (c) Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force, or while escaping or attempting to escape from such confinement, prisoner of war, or detained status. (2) While Engaged in Hazardous Service. Hazardous service is service that includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty. A finding that a disability is the result of such hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service. Travel to and from such service, or actions incidental to a normal duty status not considered hazardous, are not included. (3) In the Performance of Duty Under Conditions Simulating War. In general, performance of duty under conditions simulating war covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapon practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities such as calisthenics, jogging, formation running, or supervised sport activities. (4) Instrumentality of War: (a) There must be a direct causal relationship between the instrumentality of war and the disability. It is not required that a member's disability be incurred during an actual period of war. The disability must be incurred incident to a hazard or risk of the service. (b) An instrumentality of war is a vehicle, vessel, or device designed primarily for Military Service and intended for use in such Service at the time of the occurrence or injury. It may also include such instrumentality not designed primarily for Military Service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to Military Service. Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. (c) A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or materiel. (d) For example, if a member is on a field exercise, and is engaged in a sporting activity and falls and strikes an armored vehicle, then the injury will not be considered to result from the instrumentality of war (armored vehicle) because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the member, then the injury would be considered the result of an instrumentality of war. 2. With respect to VA awards of service-connection for presumptive conditions under 38 USC 1112(a) and Post Traumatic Stress Disorder (PTSD - VASRD Code 9411), the Military Department must independently determine the relationship between that disability and the qualifying criteria. Further, the Military Departments are not bound by any presumption described above if there is documentary information that the disability is not combat-related. The Military Departments shall base their determinations on such information. An uncorroborated statement in a record that a disability is combat-related will not, in and of itself, be considered determinative for purposes of meeting the combat-related standards for CRSC prescribed herein. CRSC determinations must be made on the basis of the program criteria. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005675 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1