RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00939
					    (CASE 2)
		INDEX CODE:  108.00

		COUNSEL:  XXXX XXXX

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be medically retired and his name placed on the Permanent Disability Retired List (PDRL) as of the date of his separation on 26 Jul 99.

He receive back retirement pay and allowances from the date of his separation to the present.

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APPLICANT CONTENDS THAT:

While on active duty, he was suffering from undiagnosed severe sleep apnea.  This condition rendered him unfit for duty.  The condition should have been the subject of a Medical Evaluation Board (MEB).  He underwent three MEBs while on active duty.  In none of the MEBs was sleep apnea reported.  Nonetheless, his active duty medical record was replete with references to a sleep disorder and potential sleep apnea.  The apparent reason that sleep apnea was not tested for or diagnosed was that the sleep problems were treated as though they were secondary to the diagnosed depression rather than a distinct condition.  After his separation, the sleep disorder continued.  A sleep study revealed that he had severe obstructive sleep apnea.  On 9 May 00, a respiratory continuous positive airway pressure (CPAP) device was ordered for him.  It is abundantly clear that he had severe sleep apnea while on active duty and that it was undiagnosed.  The severe sleep apnea warrants medical retirement under the Department of Veteran Affairs (DVA) rating of disabilities.

In support of his appeal, the applicant provided a statement from counsel, a previous decision by the Air Force Board for Correction of Military Records (AFBCMR), his DD Form 214, Certificate of Release or Discharge from Active Duty, and medical documentation.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force, on 11 Jun 87 and was voluntarily ordered to extended active duty on 5 Jan 88.

Applicant's Officer Performance Report (OPR) profile since 1988 follows:

	PERIOD ENDING	EVALUATION

	12 Nov 88			Meets Standards
	12 May 89			Meets Standards
	12 May 90			Meets Standards
	31 Jan 91			Meets Standards
	31 Jan 92			Meets Standards
	15 Jun 92			Meets Standards
	15 Jun 93			Meets Standards
	28 Aug 94			Meets Standards
	28 Aug 95			Meets Standards
	 1 Jun 96			Meets Standards
	 1 Jun 97			Meets Standards
	 1 Jun 98			Meets Standards
	 1 Jun 99			Meets Standards

On 28 Sep 98, a Medical Evaluation Board (MEB) was conducted and rendered diagnoses of recurrent dislocation of his right and left shoulders (degenerative); medical compartment arthritis, right knee (patellofemoral arthritis); and left wrist with capsulodesis.  The MEB recommended that the applicant’s case be referred to an Informal Physical Evaluation Board (IPEB).

On 24 Feb 99, an MEB was conducted and rendered diagnoses of left shoulder chronic dislocation; right shoulder chronic subluxation dislocation; right knee degenerative arthritis, post-traumatic; left wrist intra carpal ligament disruption, reconstructive surgery; and median neuropathy.  The MEB recommended that the applicant’s case be referred to an IPEB.  On 12 Mar 99, the IPEB found the applicant fit for continued military service and recommended he be returned to duty.

On 9 Jun 99, an MEB was conducted and rendered diagnoses of bilateral shoulder instability, right shoulder chronic subluxation dislocation; bilateral carpal tunnel syndrome, mild; status post left wrist scapholunate reconstruction; bilateral ulnar nerve neuropathy; right knee early degenerative disease; left ankle degenerative disease; clavicular irritation/pain; and adjustment disorder with mixed anxiety and depressed mood.  The MEB recommended that the applicant’s case be referred to an IPEB.  On 8 Jul 99, the IPEB found the applicant fit for continued military service and recommended he be returned to duty.  

Applicant voluntarily resigned his commission on 26 Jul 99 under the provisions of AFI 36-3207 (Miscellaneous/General Reasons), with service characterized as honorable.  He was credited with 11 years, 10 months, and 3 days of total active service.

On 27 Jul 99, the applicant accepted a commission as a Air Force Reserve officer in the grade of major.

On 23 Aug 00, the Board considered an application pertaining to the applicant, in which he requested that his records be corrected to show that he was medically separated from the Air Force on the date of his separation with disability associated with documented orthopedic problems and major depression; and, that he receive separation pay.  A majority of the Board recommended that his request be denied, which was accepted by the Director, Air Force Review Boards Agency on 5 Oct 00.

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently assigned to the Inactive Status List Reserve Section (ISLRS) of the Air Force Reserve.

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AIR FORCE EVALUATION:

The Medical Consultant recommended denial.  The Medical Consultant noted that shortly following his discharge from the Air Force, the applicant separated from his wife and applied to the DVA for disability compensation for his various medical problems.  He presented to a Mental Health Clinic in Panama City on 14 Dec 99 for ongoing mental health symptoms.  In that evaluation his history of sleep difficulties was detailed:  The psychiatrist ordered a sleep study, which was performed on 13 Mar 00.  The results of the polysomnogram (sleep study) was consistent with severe obstructive sleep apnea, but without evidence of significant hypoxemia (low oxygen in the blood) or tachy/brady arrhythmias (heart rhythm abnormalities associated with low oxygen).  A trial of CPAP delivered by a device that fits over the nose did benefit the patient and the sleep physician recommended the applicant sleep using a CPAP device.  On 9 May 00, a CPAP device was issued to the applicant by the Biloxi, Mississippi, DVA hospital.

The Medical Consultant noted that a DVA Psychiatry evaluation in Feb 01 reported that: “He cannot stay awake.  He sleeps a lot during the day since he is not able to sleep well during the night and claimed that he has severe sleep apnea.  He uses a CPAP machine but claimed that this is not of much help.”  The psychiatrist diagnosed the applicant as having a major depressive disorder moderate to severe.  A DVA disability rating decision dated, 24 Apr 01, awarded service-connected compensation for the following:  Adjustment disorder with mixed anxiety and depressed mood 30% from 7/27/99; 100% from 02-01-01; Carpal tunnel syndrome, left, status post scaphulo-lunate reconstruction and ulnar nerve neuropathy, dominant (10%); Carpal tunnel syndrome, right, with ulnar nerve neuropathy, non-dominant (10%); Degenerative joint disease, right knee (10%); Degenerative joint disease, right shoulder, nondominant, status post reconstructive surgery with scar (10%); degenerative disease left ankle (0%); and degenerative joint disease, left shoulder, dominant with instability (0%), bilateral factor of 2.& added.  The DVA rating decision made no mention whatsoever of obstructive sleep apnea indicating that the applicant had not submitted a claim for this diagnosis.

According to the Medical Consultant, the applicant’s history of sleep disturbance while on active duty was attributed to his adjustment disorder.  Sleep disturbance is a very common symptom of adjustment disorder and depression and can be very severe. Disturbed sleep is also a hallmark of obstructive sleep apnea syndrome (OSAS).  There was concern raised by the applicant’s wife while he was on active duty that he might have had OSAS documented in a 3 Jun 99 psychiatry appointment.  It is more likely than not that his subsequently diagnosed OSAS did indeed exist while he was on active duty since the disorder typically develops gradually over a long period of time.  The severity of his OSAS while he was on active duty cannot be ascertained as his symptoms of sleep disturbance were inextricably intertwined with his adjustment disorder.  Nor can it be determined what the relative contributions to his symptoms of sleep disturbance were from his adjustment disorder versus OSAS.  OSAS patients typically do not complain of disturbed sleep as they are sound sleepers, and totally unaware of events while sleeping.  People suffering sleep disturbance from adjustment disorder, stress related conditions, and depression are acutely aware of their insomnia.  Obstructive sleep apnea is the result of relaxation of the muscles of the pharynx (throat) during sleep that obstructs the normal flow of air during sleep and results in decreased levels of oxygen and increased carbon dioxide in the blood.  It is a very common disorder, occurring more frequently in men than women and is associated with obesity but not exclusively.  The consequences of this disorder include excessive daytime sleepiness (due to sleep fragmentation), physically restless sleep, night sweats, morning dry mouth or sore throat, personality change, morning confusion, intellectual impairment, impotence, and morning headaches.  The most disabling symptom is loss of alertness during the day.  One of the symptoms is snoring, but not all who snore have the disorder.  Treatment of OSAS targets a number of contributing factors and often includes weight loss, training the patient to sleep on their side (limiting airway collapse), and use of a device that maintains positive air pressure in the pharynx (CPAP) and holds the airway open.  CPAP is very successful in restoring normal sleep; however, not all patients can tolerate wearing the device.  In cases not responsive to the above interventions, options include surgery to widen the pharynx, or placement of an opening directly into the trachea (tracheotomy), which is kept covered (closed during the day) and opened for sleep.  The fact that the applicant reported his CPAP did not improve his sleep symptoms, suggests those symptoms are due to his mental health difficulties.  There was no documentation of further evaluations of his OSAS after the initial sleep study in Mar 00.  Many patients with this disorder have been reported to have concomitant symptoms of depression and anxiety, but OSAS is not considered a cause of depression.  OSAS as a co-morbid condition can aggravate symptoms of depression or adjustment disorder.  Use of CPAP for the OSAS also improves symptoms of depression and anxiety.  

The Medical Consultant indicated that in spite of his medical problems, the applicant continued to perform well his military duties and meet Air Force physical fitness standards.  Had his OSAS been diagnosed while on active duty, he would have been retained on active duty.  Although AFI 48-123, paragraph A.2.2.1.4., lists obstructive sleep apnea requiring a CPAP device as a reason for medical review, in practice, it has been rare that individuals have been found unfit.  Usually the CPAP device and other measures are effective treatments and active duty members with OSAS deploy with their CPAP device.  Further, the applicant was performing administrative duties and use of a CPAP device would not interfere with the requirements of his job.  Had the PEB been made aware of his OSAS at the time of his Jun 99 MEB, he would have been returned to duty since there was no other evidence to show that the OSAS had rendered him unfit.  In addition, he was within his period of presumption of fitness with his anticipated voluntary separation.  It is interesting that it appears that the applicant had not applied to the DVA for service connection for his OSAS as of Apr 01, a full year after diagnosis, even though the DVA issued him a CPAP device.  The Medical Consultant is of the opinion that the applicant should apply to the DVA for service connection for his OSAS, as there is reasonable evidence to support consideration for service connection.

In the Medical Consultant’s view, the action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.

A complete copy of the Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommended denial, indicating that although several medical conditions were identified during his three MEBs, sleep apnea was not identified as one of his problems at the time.  His adjustment disorder with depressed mood was also identified; however, this condition is considered unsuiting rather than unfitting, and is not compensable or ratable under military disability laws and policy.  Active duty members who are found fit for duty while undergoing disability processing do not have rebuttal rights under this program.

AFPC/DPPD indicated that standards for determining unfitness are determined when a service member’s physical defects or conditions render them unfit to perform their military duties.  The mere presence of a physical defect or condition does not automatically qualify an individual for disability retirement or discharge. Under military disability laws and policy, a service member shall be considered unfit when the preponderance of evidence establishes that they are unable to reasonably perform the duties of their office, grade, rank, or rating.  The military disability evaluation system only compensates individuals when medical conditions cause or contribute to an early career termination.  A member who continues to perform his or her duties right up until the time of their separation or retirement creates a presumption that their medical condition has not shortened their career.  Records reflect the applicant was reasonably capable of performing his assigned military duties right up until the time of his voluntary separation and entry into the Reserves.  Additional testimony that he was capable of performing his military duties is reflected in his performance reports which include the highest ratings available.  His acceptance by the Air Force Reserve also shows some degree of his fitness at the time of his release from active duty.

AFPC/DPPD stated that medical conditions incurred while on active duty that are not serious enough to cause the early termination of a military career are not compensated under Title 10, United States Code (USC); however, veterans may be compensated for service-connected medical conditions under Title 38, USC, by the DVA.  An interesting note concerning the veteran’s most current DVA rating decision, dated 24 Apr 01, shows that he is not currently being rated for sleep apnea but primarily for his adjustment disorder mixed with anxiety and depressed mood amongst other medical conditions.

Following their examination of the file, AFPC/DPPD indicated they determined that the applicant was treated fairly throughout the military disability evaluation process, that he was properly rated under federal disability guidelines at the time of his evaluations, and that he was afforded full and fair hearings as required under military disability laws and policy.  Based on the above findings, they are unaware of any reasons that would require that his records be corrected to reflect he was awarded a permanent disability retirement. The Medical Consultant extensively explained the medical aspects of the case in his advisory and they agree with his assessment.

In AFPC/DPPD’s view, the applicant has not submitted any material or documentation to show he was unfit due to a physical disability under the provisions of Chapter 61, Title 10, USC and AFI 36-3212 at the time of his voluntary release from active duty and subsequent assignment to the Air Force Reserve.

A complete copy of the AFPC/DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter, dated 5 Sep 02, the applicant’s wife provided a statement in his behalf, with attachment, which is attached at Exhibit F.

In his response, dated 9 Sep 02, counsel indicated that both advisory opinions relied upon the notion that the applicant was fit for duty at the time of separation and they disagree.  As they have pointed out, the applicant was, in fact, unfit for duty at the time of his separation, and the sleep apnea which went unidentified as a causative condition, rendering him unfit, further demonstrated their point.  There was no evidence that the sleep disturbance was secondary to the adjustment disorder.  In fact, this is a full-blown diagnosis of sleep apnea, requiring mechanical intervention for remediation.

According to counsel, when one looked at the totality of the applicant’s physical condition upon separation, it was clear that for quite some time, he was, in fact, unfit for duty.  The orthopedic problems, the psychiatric problems, and the sleep apnea combined rendered him unfit for duty long before he was separated.  The simple truth is that if he had a commander who cared about him instead of being biased against him, he would have separated with a medical separation.  A review of his record demonstrated that he was not performing well in his job prior to his separation.

In counsel’s view, the advisory opinions demonstrated that the Air Force was falling all over itself in an effort to try to demonstrate the correctness of earlier decisions, but it was inescapable that there were a constellation of physical problems associated with the applicant which cannot be ignored and which under any other circumstances would have resulted in a medical separation.

Counsel’s complete response is at Exhibit H.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions or the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPR).  The evidence of record reflects that the applicant resigned his commission as an Air Force officer and separated from active duty on 26 Jul 99.  We note that subsequent to his separation from the Air Force, the applicant was diagnosed with obstructive sleep apnea.  He now requests that he be medically retired from the Air Force as of the date of his separation on 26 Jul 99, contending that he was suffering from the undiagnosed condition while on active duty which rendered him unfit for duty.  However, we find no evidence which has shown to our satisfaction that had the applicant been diagnosed with sleep apnea prior to his separation from the Air Force, he would have been found unfit to perform the duties of his rank and office, which is, by law, the basis for disability processing.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we adopt the Air Force rationale and conclude that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number 02-00939 in Executive Session on 7 Nov 02, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Dec 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 24 Jun 02.
    Exhibit D.  Letter, AFPC/DPPD, dated 22 Jul 02.
    Exhibit E.  Letter, SAF/MRBR, dated 26 Jul 02.
    Exhibit F.  Letter in applicant’s behalf, dated 5 Sep 02,
                w/atch.
    Exhibit G.  Letter, counsel, dated 9 Sep 02.