RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2008-01816
INDEX CODE:  108.02
	xxxxxxxxxxxxxxx				COUNSEL: XXXXXXXXXX
								HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His permanent disability rating be increased from 30% to 80%.  

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APPLICANT CONTENDS THAT:

Counsel states the medical documentation shows that due to the applicant’s Obstructive Sleep Apnea (OSA) he requires the use of a continuous positive air pressure (CPAP) machine.  The Secretary of the Air Force Personnel Council found the applicant only qualified for 30% by wrongfully characterizing the applicant’s OSA as depicting “persistent daytime hypersomnolence,” which is contrary to the express definition of the rating code in the Veterans Administration Schedule for Rating Disabilities (VASRD), which would require a 50% disability rating.  On 22 Apr 08, the Department of Veteran Affairs (DVA) determined the applicant’s overall combined disability rating to be 100%.

In support of his request, applicant provides counsel’s brief, copies of the DVA rating decision dated 1 Aug 07 and 17 Apr 08 and other documents associated with his physical evaluation board.  

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

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STATEMENT OF FACTS:

The applicant entered active duty on 15 Jul 85.  On 13 Dec 06, his commander recommended the applicant be medically retired because of persistent sleep apnea with related sinus and allergy problems that hindered his ability to get restful sleep at night, which in turn caused him to be fatigued and exhausted during the duty day.  A Medical Evaluation Board (MEB) found the applicant unfit due to diagnosis of paroxysmal supraventricular tachycardia (PSVT) sleep apnea and referred his case to the Informal Physical Evaluation Board (IPEB).  The IPEB findings, dated 7 Feb 07, indicated they found the applicant had a compensable and ratable condition of OSA, controlled with CPAP and recommended a disability rating of 0%.  On 13 Feb 07, the applicant disagreed with the IPEB findings and recommendation and requested a formal hearing.  The Formal Physical Evaluation Board (FPEB) findings, dated 20 Mar 07, indicated a diagnosis of allergic rhinitis and OSA, controlled with CPAP; and conditions not currently compensable or ratable of PSVT, gastroesophageal reflux disease and hiatal hernia.  The FPEB recommended permanent disability retirement with a 10% disability rating.  On 30 Mar 07, the applicant appealed to the Secretary of the Air Force (SAFPC) disagreeing with the FPEB findings and recommendation and requested a permanent retirement with an 80% disability rating.  On 2 May 07, SAFPC found the applicant unfit for his condition of OSA, with persistent daytime hypersomnolence, associated with allergic rhinitis rated at 30% disabling; and conditions not compensable or ratable of PSVT, gastroesophageal reflux disease and hiatal hernia.  On 18 Jun 07, the applicant was relieved from active duty and permanently disability retired effective 19 Jun 07 with a combined compensable percentage for disability of 30%.  He served 21 years, 11 months, and 4 days of active duty.  

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AIR FORCE EVALUATIONS:

HQ AFPC/DPSD recommends denial.  DPSD states the Department of Defense and the DVA disability evaluation systems operate under separate laws.  Under Title 10, USC, Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  It is the charge of the DVA to pick up where the Air Force must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.  The AFPC/DPSD complete evaluation is at Exhibit C.

The BCMR Medical Consultant recommends alternatively changing the record to reflect a medical retirement with the award of a 50% disability rating for the applicant’s OSA.  The BCMR Medical Consultant states unlike the VASRD rating criteria the ratings are based upon the level of industrial, or occupational, impairment.  While these are vulnerable for subjective interpretation, a mild level of impairment rates 0%, definite impairment rates 30%, considerable impairment rates 50%, and total impairments rates 100%.  It is likely then, that the FPEB and the SAFPC had the aforementioned criteria in mind when applying the “0%” disability rating, in the case of the former, and the “30%” rating awarded by the latter.  However, instead of justifying the 30% rating under “definite” industrial impairment” criterion,” the SAFPC utilized the VASRD criterion, “persistent daytime hypersomnolence,” to depict the level of severity; while appearing to ignore the fact that the applicant required a CPAP device, which otherwise warrants a 50% disability rating.  The BCMR Medical Consultant also finds it appropriate to associate the applicant’s allergic rhinitis, utilizing a hyphenated disability rating code, as a recognition that it is the coexistence of this co-morbid disorder that rendered the applicant’s OSA unfitting and which cut his career short; while also acknowledging that neither allergic rhinitis nor sinusitis, alone, would have been unfitting, but not for the applicant’s OSA.  The BCMR Medical Consultant’s complete evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In response to the AFPC/DPSD evaluation, counsel responds that the applicant’s rating has to be based on the rating criteria, in other words, the DVA rating chart, rather than pulling a percentage of out thin air and applying it to the applicant’s case.  A total rating of 30% is arbitrary and capricious and is not based on applicable regulations and rating chart.  At the very least, the AFBCMR should award the applicant a 60% disability rating. The counsel’s complete letter is at Exhibit E.

In response to the BCMR Medical Consultant’s evaluation, counsel writes that while the applicant agrees with the recommendation of the BCMR Medical Consultant to increase his OSA to 50%, he still believes that he is entitled to a separate 10% rating for allergic rhinitis, which was found to be unfitting and awarded to him by the FPEB and an award of at least 10% for his PSVT.  The applicant contends that both of these conditions contributed to the end of his military career and as such should both be found “unfitting” and subject to a minimal compensation of 10% for a total evaluation of 70%.  The counsel’s complete letter 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.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting partial relief.  After carefully reviewing the evidence of record, we agree with the BCMR Medical Consultant that it appears the applicant’s condition was not properly characterized according to the level of severity of the applicant's OSA.  Therefore, we believe that a change in his records is warranted to reflect a 50% disability rating at the time of final disposition of his case.  With regard to counsel's contention that the applicant's allergic rhinitis is a separate disabling condition and as such should be rated separately, we note the BCMR Medical Consultant's recommendation that it would be appropriate to associate the applicant's allergic rhinitis, utilizing a hyphenated disability rating code as recognition that it is the coexistence of this co-morbid disorder that rendered the applicant's OSA unfitting.  We agree with his recommendation.  

4.  Insufficient relevant has been presented to demonstrate the existence of error or injustice with regard to the applicant's PSVT.  We noted counsel's contentions and defer to the evidence of record which shows that this condition alone was not found unfitting by the disability evaluation system and that this condition was well controlled with medication.  We note that, subsequent to the applicant's separation, his PSVT condition was evaluated by the DVA and he was granted service connection and a 10% compensable rating.  But, we are constrained to note that while, by law, the Department of Defense rates disabilities solely based on their impact on the member’s ability to perform his or her duties, the DVA rates disabilities based on their impact on social and industrial adaptability.  In view of the above and in the absence of persuasive evidence by the applicant that successfully refutes the information in his record; we find no basis to recommend relief on this portion of his request.  

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THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a.  On 18 June 2007, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was Obstructive Sleep Apnea-Allergic Rhinitis, VASRD code 6847-6522, rated at 50%; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

	b.  On 19 June 2007, he was retired by reason of physical disability under the provisions of AFI 36-3212.

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The following members of the Board considered Docket Number BC-2008-01816 in Executive Session on 11 Dec 08, under the provisions of AFI 36-2603:

			XXXXXXXXXX, Panel Chair
			XXXXXXXXXX, Member
			XXXXXXXXXX, Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to Docket Number BC-2008-01816 was considered:

   Exhibit A.  DD Form 149, dated 8 May 08, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPSD, dated 12 Jun 08.
   Exhibit D.  Letter, SAF/MRBR, dated 25 Jul 08.
   Exhibit E.  Letter, Counsel, dated 19 Aug 08.
   Exhibit F.  Letter, BCMR Medical Consultant, dated 6 Oct 08.
   Exhibit G.  Letter, SAF/MRBR, dated 7 Oct 08.
   Exhibit H.  Letter, Applicant, dated 31 Oct 08.

				XXXXXXXXXX
				Panel Chair