Sleep Apnea

Jason Perry

Jason Perry

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Soldiers with this condition are often very confused and frustrated by the Army's ratings for this condition. That is because while the VA will award 50% for use of CPAP machine, the Army often finds this condition to be not unfitting. For futher explanation of what this means, please read this thread: http://www.pebforum.com/showthread.php?t=20 .

Also, the Army has published additional guidance on this issue in I & G #7:

"ISSUE AND GUIDANCE MEMORANDUM NO. 7
25 May 2005 (Revised 23 March 2007)

RESPIRATORY SYSTEM: DC 6847

Issue: Is the condition of Sleep Apnea that requires CPAP “that cannot be used in a field environment” an acceptable basis for finding a Soldier UNFIT?

Discussion: A requirement for CPAP in cases involving Sleep Apnea has been viewed by some adjudicators as rendering the Soldier nondeployable and, therefore, UNFIT. Nondeployability alone is not a sufficient basis for finding a Soldier unfit unless the Soldier’s job requires regular deployment. Further, whether a Soldier must have CPAP or suffer serious adverse health effects is essential to determine. It is uncommon for serious permanent adverse affects to occur with periods of nonuse of CPAP. Further, not all deployments deprive a Soldier of the ability to use CPAP.

Guidance: The requirement for CPAP will not be used as a sole basis for finding a Soldier UNFIT unless it can be shown that the Soldier’s job requires regular deployment during which the use of CPAP is not possible AND the Soldier’s heath would be permanently and seriously adversely affected. A statement to the effect that “the Soldier is on CPAP which cannot be used in a field environment” is not, alone, an adequate justification for a finding of UNFIT."

So, to summarize, the following is neccesary to get an unfitting finding:

1) Soldier's job (remember grade and MOS, not particular duty assignment) requires regular deployment.
2) It is not possible for Soldier to use CPAP during deployment.
3) This lack of use would be permanently and seriously affected.

I have yet to see the PEB find a Soldier unfit based on use of CPAP. I alert everyone to this so that they have realistic expectations and so they can know what type of evidence is neccesary to get rated.

 
Sleep Apnea Ratings at PEB

A further source of confusion is once found unfit because of sleep apnea, a servicemember will not be rated IAW with the Veteran's Affairs Schedule for Rating Disabilities (VASRD). I think this is clearly illegal and urge anyone who is rated low to challenge this in Federal Court of Claims, if neccesary.
Recall the earlier post on the necessity of being found unfit before sleep apnea will be rated. This is not different from any other condition. However, the military has decided to deviate from the plain language of the VASRD and substitute it's own rating scheme.

Here is the rating criteria used by the VA:
"6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):
Chronic respiratory failure with carbon dioxide retention or
corpulmonale, or; requires tracheostomy........................................ 100

Requires use of breathing assistance device such as
continuous airway pressure (CPAP) machine....................... ...... 50

Persistent day-time hypersomnolence ............................................ 30

Asymptomatic but with documented sleep disorder breathing............... 0"


Notice the Bold criteria above that states required use of CPAP will result in a rating of 50%. Now contrast the above rating schedule with the one substituted by the Department of Defense in DODI 1332.29:

"E2.A1.2.21. 6847. Sleep Apnea Syndromes. The VASRD lists four percentage rating options: 0%, 30%, 50%, and 100% under this code, corresponding to assessed levels of disability relative to civilian earning capacity due to Sleep Apnea. The following interpretation will apply:

Total industrial impairment 100%

Considerable industrial impairment 50%

Definite industrial impairment 30%

Mild industrial impairment 0%"

You can see that the substituted interpretation (there is no authority in Title 10 USC, chapter 61, for the DOD to interpret) replaces an objective criteria ("use of CPAP machine") with a subjective one ("considerable industrial impairment"). You can see how this can unfairly deny servicemembers retirement based on their sleep apnea.
 
Jason,

You hit it on the head. Often it is not considered unfitting. But when it is, it is not properly rated per the VASRD. In filed a DoD IG compalint on this issue last August. They refused to open a case. I also file this concern wiht the Army IG, After a year of "investigating" they stated an Army Reg says they can do it and it is legally sufficient. That was before the Walter Reed situation blew and up and got this issue in front of the eyes of the public, senior DoD/Army leadership and Congress.

The ABCMR case I referred to is AR20060003988

Below is an excerpt from McHenry V. US on the issue of using the VASRD.


McHenry v. United States, 367 F.3d 1370 (Fed. Cir. 2004) affirmed the following:

The statute mandating the creation of the VASRD requires only the Secretary of Veterans Affairs to apply the guidelines, see 38 U.S.C. § 1155 (2000),[7] but 10 U.S.C. § 1201 requires that disability ratings by the Secretary of the pertinent military department be based on the VASRD schedule. Section 1201 provides: “Determinations [that a service member is unfit for duty because of a physical disability] are determinations by the Secretary that . . . the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination . . . .” 10 U.S.C. § 1201(b) (emphasis added). Section 1204(4)(B), involving disability retirement for service members not covered by section 1201, similarly requires that disability ratings be based on the VASRD schedule, using the same language as section 1201. See also 10 U.S.C. § 1203(b)(4). In Thompson v. United States, 195 Ct. Cl. 468 (1971), our predecessor court held that section 1204(4)(B) requires the Secretary to apply the VASRD in rating disabilities. Id. at 477; see also Hordechuck v. United States, 144 Ct. Cl. 492, 495 (1959). The court noted that the statute “requires by specific reference, that the rating of disability be made ‘under the standard schedule of rating disabilities in use by the Veterans Administration.’” Thompson, 195 Ct. Cl. at 477 (quoting 10 U.S.C. § 1204(4)(B)).[8] “[T]here [is] no authority for reducing percentages beyond those found in the schedule itself.” Wolf v. United States, 168 Ct. Cl. 24, 32 (1964). Although the armed forces must use the VASRD guidelines when the service member’s disabilities “come within” them, the Secretary may make upward departures from the VASRD guidelines in particular cases. Id. at 31-32; see also Finn v. United States, 212 Ct. Cl. 353, 356 (1971).[9] These same rules apply to the identically-worded section 1201 involved in this case.


Mike
 
Jason,

Sleep apnea has some other less well known risks, but very serious nonetheless. The one I am most familar with is NAION. NAION stands for Non Arteritic Ischemic Optic Neuropathy. It is an eye condition that starves the eyes of blood-flow and kills the optic nerve. I was diagnosed with NAION at Walter-Reed. I have had four military doctors tell me my NAION was caused by a USAF flight surgeon, who gave me 10x the legal dose of Hytrin (which lowered my blood pressure and starved my eyes of bloodflow). However, the Neuro-ophathamologist at WRAMC told me of studies that link sleep apnea with NAION.

If NAION is a possible outcome of sleep apnea, then sleep apnea must be dealt with. The other outcomes of sleep apnea such as stroke, heart disease and day time sleepiness may or may not be debilitating; but NAION (blindness) will get your attention and is immediately life altering. You cant do much without your eyesight.

The primary risk factors for NAION are diabetes, being overweight, and being caucasian male. How many caucasian, overweight, men who snore (sleep apnea) do you know in military service. Add in a few that may have diabetes that dont know about it and you have a great recipe for NAION.

I think if a med board finds a soldier, sailor, airman unfit based on sleep apnea and returns them to a deployable billet there is a good chance they will not use the CPAP machine in the field. The consequences could be dire.

Some links to look at:
http://www.medscape.com/viewarticle/434549

http://archopht.ama-assn.org/cgi/content/abstract/120/5/601?ck=nck

http://archopht.ama-assn.org/cgi/reprint/120/5/601.pdf

I hope this helps give you some ammo for the med boards

Vernon M Wegener, Maj, USAFR
 
Vernon,

Great information! There are probably not many folks who are aware of the NAION issue, so this is helpful.

Remember, that the military and VA disability compensation systems work of a functional analysis. So, if someone had sleep apnea AND NAION, they would be rated for two separate conditions. This is so even if there is a causal effect.

Another good point is about the deployability issue. Once you are returned as fit, there are no PEB directed limitations on deployment. It is a command/personnel function at that point. If everything works the way it is supposed to, Servicemembers will not be put in a position where their health is at risk. But there are many times where I have seen that everything did not work as it was supposed to.

Interesting articles. Thanks!
 
When I was in the AF many positions had no deployment responsibilities. However, from what I've heard, and I'm sure Vernon can correct me if I'm wrong, everyone is now considered to be in a deployable position.

Consquently they must be able to meet the physical requirements of deployment in a forward operating base.
 
Only twist I would add to this is that deployability is by law not the sole criteria for fitness. It can be a factor in arguing, but if non-deployability is the only thing that limits duty performance, the correct finding is "fit."
 
If you are fit, you should be returned to duty within the limits of your profile. However, be aware that the Navy has been administratively separating people after a PEB fit finding. This issue is very contentious and in my opinion is illegal. But they are doing it.
 
I am an active duty Air Force NCO who was boarded for Sleep Apnea four years ago. I was given an Assignment Limitation Code (ALC) of C, which means that I was non-deployable. In the last couple of years, the Air Force has broken the code-C down into three types: C-1 is for those with the mildest form of a disease and allows you to deploy or pcs to locations with a non-fixed MTF; C-2 is for those with the moderate form of a disease and allows you to go to bases within CONUS without a waiver and C-3 is for those with the most severe forms of a disease and allows you to go to bases within CONUS without a waiver. The difference between the C-2 and C-3 is the waiver process. In the past, most sleep apnea patients who needed CPAP were coded C-2 or C-3, but I was recently told by my pulmonologist that the use of a CPAP will no longer keep you from deploying, although I have not yet seen anything come down through official channels.
 
Sleep Apnea ---- Navy Adm Sep after fit finding

Jason,
How would the Navy go about Admin Sep'ing someone with a fit finding. If they meet weight standards and can pass a PRT, by what are they getting adm sep'ed for? Who pushes for the Adm Sep?
 
I'm confused still. I'm going through the MEB right now for several conditions. One being I have mild sleep apnea which requires the use of CPAP and also REM Sleep Behavior Disorder(violent thrashing in my sleep) and a couple of other issues. So does this mean I would get 50% since I have mild sleep apnea and I have to use the CPAP? Also do you know anything about the REM sleep behavior disorder? Any info would be greatly appreciated
 
leeland

50% is the rating for an UNFIT finding of sleep apnea w/CPAP. i have sleep apnea and use my CPAP faithfully. it helps and i hope it helps my rating :). my buddy just retired from the army and when he filed w/the VA he got 50% for it.
 
This is ALL great information! My question is that I know you will receive 50% from the VA for Sleep Apnea w/CPAP. I'm trying to figure out what the Army might rate me? :confused:
 
My husband has severe sleep apnea and is currently going through the MEB. When we met last week to start his NARSUM we were told that "severe" sleep apnea was unfitting and "should" be rated. I'm not sure where they draw the line for moderate to severe...Only 2 months ago we were told by the pulmonary clinic it was non-deployable but not unfitting so we were suprised to be told differently by the MEB physician. I don't suppose that we will know though until we get the results and percentage of retirement back...
 
soldierswife,

Welcome! I hope your husband is doing okay. Sounds like your case has been sent off to the PEB already. So at least you've gotten that far.

Let me first say that only body that can determine your husband's fitness or unfitness is the PEB. Everything up to the case going off to the PEB is simply determining if your husband meeds retention standards, the MEB must have indicated if he was 'medically acceptable/unacceptable' or 'failed retention standards'. While this does not indicate if he is fit or unfit, it certainly does give you an indication as to what the doctors at the MEB level thought of his condition.

The VASRD (Veterans Affairs Schedule for Rating Disabilities) list the following criteria for rating sleep apnea:



[FONT=&quot]6847[/FONT][FONT=&quot] Sleep Apnea Syndromes (Obstructive, Central, Mixed):
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Chronic respiratory failure with carbon dioxide retention or cor [/FONT]
[FONT=&quot]pulmonale, or; requires tracheostomy............................................................... 100
[/FONT]


[FONT=&quot]Requires use of breathing assistance device such as continuous [/FONT]
[FONT=&quot]airway pressure (CPAP) machine...................................................................... 50 [/FONT]



[FONT=&quot]Persistent day-time hypersomnolence................................................................ 30[/FONT]


Asymptomatic but with documented sleep disorder breathing...............................0
[FONT=&quot][/FONT]

[FONT=&quot][/FONT]
[FONT=&quot][/FONT]
Click to expand...

As you see, the rating he will receive is contingent on the degree of his disability.

In regards to meeting retention standards, AR 40-501 states:
c. Sleep apnea. Obstructive sleep apnea or sleep-disordered breathing that causes daytime hypersomnolence or
snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, nasal continuous
positive airway pressure (CPAP), surgery, or an oral appliance. The diagnosis must be based upon a nocturnal
polysomnogram and the evaluation of a pulmonologist, neurologist, or a privileged provider with expertise in sleep
medicine.
(1) A 12-month trial of therapy with nasal continuous positive air pressure may be attempted to assist with other
therapeutic interventions, during which time the individual will be issued a temporary profile. Soldiers with severe
sleep apnea and/or symptoms may be referred directly for an MEB. If nasal CPAP is required for longer than 12
months, the Soldiers should be profiled as a permanent P2.
(2) If symptoms of hypersomnolence or snoring can not be controlled with medical therapy, nasal CPAP, surgery or
an oral appliance, the individual should be referred for a MEB. If the use of nasal CPAP or other therapies for sleep
apneas result in interference with satisfactory performance of duty as substantiated by the individual’s commander or
supervisor, the Soldier should be referred to a MEB.
Click to expand...

Does he have any other compensable/ratable conditions? These would be listed on his DA 3947.
 
soldierswife,

I take it you are Army? If he stops breathing less than 30 times an hour it is mild more than 30 times an hour it is severe.

The problem with SA it the MEB will find it does not meet retention but it is hard to get the PEB to give you a % for it. I have severe (129 an hour) and the PEB told me no problem just take my machine to war.

I hope things go well for you.

Here is a forum about SA

Sleep Apnea Support Forum Index
 
Thanks for all of the information. He does have several other issues that the MEB doctors say make him unfit for duty and we were suprised to see the sleep apnea included in the list. I don't remember his score just that it was well above the acceptable rate and he is going to be and has been on a sleep apnea machine for almost a year now.

I am curious though, I thought that the doctors said it made you not fit for duty the PEB had to rate you based on that? We still don't have the "completed" NARSUM so it will be atleast another month before we have a percent of what they are going to rate but how do they determine what they will or won't rate if a situation deems you not fit for duty??
 
Centcom Mod 9, official policy change. You can no longer deploy to areas of responsibility in the middle east with any type of durable medical equipment (tens unit, cpap, etc.), with out a waiver. And In my units case they were not approving waivers at all. And whats more as soon as that change was made, my sleep doc told me that she would be puting me in for an MEB because of this policy change; Not the 40-501 like she should have. But hey, army strong right! ;)
 
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