IN THE CASE OF:
BOARD DATE: 6 November 2008
DOCKET NUMBER: AR20080014628
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that all of his Department of Veterans Affairs (VA) rated disabilities be approved for Combat-Related Special Compensation (CRSC).
2. The applicant states, in effect, that he developed sleep apnea while he was serving Desert Storm/Desert Shield. He further states that the VA rated him at 50 percent for his sleep apnea and that the CRSC Agency is refusing to grant compensation for this condition.
3. The applicant provides copies of all of his CRSC considerations including the final CRSC Reconsideration Decision and associated medical documentation in support of this application.
CONSIDERATION OF EVIDENCE:
1. Combat-Related Special Compensation (CRSC), as established by Section 1413a, Title 10, United States Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it wasnt for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax free. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10% disabling. For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war. Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.
2. Records show that the VA rated the applicant's disabilities at 10 percent for tinnitus, 30 percent for brain condition, 50 percent for sleep apnea syndrome, 10 percent for lumbosacral or cervical strain (L-spine), and 10 percent for lumbrosacral or cervical strain (C-spine). These records further show that the sleep apnea syndrome, lumbosacral or cervical strain (L-spine), and lumbrosacral or cervical strain (C-spine) could not be verified as combat-related illnesses.
3. On 30 July 2008, the U.S. Army Physical Disability Agency (USAPDA) Combat-Related Special Compensation (CRSC) Branch denied the applicants request for reconsideration of his previous request for CRSC. Specifically, the
VA informed the applicant that his disabilities were previously awarded CRSC and verified the percentage and effective date. This form also shows that the applicant's sleep apnea syndrome, lumbosacral or cervical strain (L-spine) and lumbrosacral or cervical strain (C-spine) conditions were unable to be verified as combat-related. It was also determined that the total combined percentage for combat-related disability previously awarded would not be changed.
4. Personnel at the USAPDA CRSC Branch provided the applicant a description of sleep apnea to explain why CRSC benefits could not be granted for sleep apnea. This explanation essentially stated that sleep apnea is normally caused by anatomical abnormalities, weight gain, age, loss of muscle mass, use of alcohol and drugs, smoking, hypothyroidism, nasal congestion, or enlarged tonsils and adenoids. None of these conditions meet the combat-related criteria.
DISCUSSION AND CONCLUSIONS:
1. The CRSC criteria is specifically for those military retirees who have combat- related disabilities. Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC. The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving.
2. The applicant's records clearly show that the USAPDA determined that he is entitled to some CRSC benefits. However, there is no evidence and the applicant has not provided sufficient evidence to show that he is entitled additional CRSC benefits based on his sleep apnea condition. Absent such evidence, there is no basis to grant relief in this case.
3. Although, there is insufficient evidence to grant the relief requested this by no means diminishes the applicants dedicated service to and sacrifices for a grateful nation.
BOARD VOTE:
________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ X_______ ___
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR20080014628
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