Not even close to a sure thing.
First, the PEB has to find the condition unfitting. Then you must get a PEB rating of 30% or more on the unfitting conditions. If they PEB does not think you are worthy of disability retirement, they simply cherry-pick which conditions to deem unfitting to keep the PEB rating below 30%. Dollar to bet a donut the PEB will find your other conditions unfitting with a rating of less than 30% and will find your sleep apnea not to be unfitting to avoid the 50% rating requirement and disability retirement.
I am currently assisting a soldier with very severe sleep apnea. This condition has caused CENTCOM to ban him from deploying to the theater and resulted in a permanent profile from his doctor banning him from carrying and firing weapons, driving military vehicles and performing any guard duty due safety concerns driving by excessive daytime sleepiness.
His doctor has explained to the PEB that his condition is not responsive to surgery, CPAP or drug therapy. His PMOS is an aircraft electrician, a job you must get right or people die; there is no room for error because of physical and mental fatigue due to a lack of quality sleep. Due to safety issues, he should not work on helicopters just like he has been banned from carrying and firing weapons and driving military vehicles. His PEB does not give a rat’s ass about any such evidence of unfitness and are maintaining a fit finding to avoid disability benefits. The soldier is scheduled to be administratively discharged if the PEB continues a fit finding due to the impact of this condition on his performance.
The PEB continues to hold that this condition is not unfitting and the PEB is clearly finding him fit to avoid paying any disability benefits. Trust me, the Disability Evaluation System does not have your best interest at heart. Rather they have the budget and restraining disability costs as their driving motivation. The disability laws and policies that protect the interest of the woounded warrior are simply ignore and there is no penalty for doing so.
Go ahead, take them to court. If you win some years later they merely have to pay what they should have paid to begin with years ago. Very few have the legs and resources to fight the issues in court and again there is no penalty to the PEB for improperly adjudicating disability cases. They simply deny until a court tells them they must pay and very few have the ability to carry on a fight at that level.
This is a very great business model for those who care about the budget much more than wounded warriors and has proven to be very effective at keeping disability cost down. Right now, disability retirement costs to DoD are less than they were in 2000 despite the massive amount of casualties from the GWOT. The number of disability retirees was well over 102,000 in 2000. That number has dropped to around 86,000 by the end 2008 even as our forces are getting shot and bombed to pieces in fighting across the globe. For years the DoD disability retirement budget has remained flat at about $1.2 billion a year and PEB’s simply ignore laws and regulations to keep the costs at that level. Disability costs threaten operations and acqusistion budgets and DoD will simply not let that happen.
Mike
