MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 August 2000                   
	DOCKET NUMBER:   AR2000039801

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Roger Able		Member	
	Mr. Charles Gainor		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his disability rating be changed back to 50 percent.

APPLICANT STATES:  That the Army uses the same policies and regulations as the Department of Veterans Affairs (VA).  If the VA gives him a 70 percent disability rating, the Army should not refuse to rate him.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 15 September 1987.  He completed basic training and advanced individual training and was awarded military occupational specialty 63S (Heavy Wheeled Vehicle Mechanic).  He served in Southwest Asia 1 January – 20 May 1991.

In 1998, the applicant was referred to a medical evaluation board (MEB) for complaints of sleep apnea and elbow pain.  An Otorhinolaryngology consultation noted that in January 1997 the applicant underwent a formal sleep study and was noted to have severe obstructive sleep apnea.  He was placed on a continuous airway pressure (CPAP) trial and his obstructive sleep apnea had been completely resolved.  He underwent a surgical procedure but it was not completely curative.  A CPAP was prescribed, which he tolerated well.  He felt very rested, he was performing well at work and the previous symptoms of daytime somnolence had completely resolved.  

An Orthopedics consultation noted that he had a greater than one-year history of bilateral elbow discomfort.  He currently performed administrative duties with minimal difficulty but had increasing pain about his elbows with prolonged grasping efforts.  Mild tenderness on both elbows at the lateral epicondyle was noted.  No pain with resisted wrist or digit extension was noted.  There was full range of motion about the elbow without evidence of swelling.  Plain radiographs were normal.  

On 15 June 1998, the MEB diagnosed the applicant with obstructive sleep apnea, severe, controlled with CPAP and bilateral epicondylitis and referred him to a physical evaluation board (PEB).  On 19 June 1998, the applicant concurred with the board’s findings and recommendation.  

On 23 June 1998, an informal PEB found the applicant unfit for continued service for the diagnosis of obstructive sleep apnea.  The Physical Evaluation Board (PEB) Proceedings, DA Form 199, noted that all symptoms of excessive daytime somnolence with easy fatigability, night time loud snoring with witnessed apneaic episodes were all reversed with CPAP.  The diagnosis of bilateral epicondylitis was considered and found to be not unfitting and therefore not ratable.  The applicant was recommended for permanent disability retirement with a disability rating of 50 percent.  On 25 June 1998, the applicant concurred and waived a formal hearing of his case.

On 6 August 1998, the U. S. Army Physical Disability Agency (USAPDA) reviewed the applicant’s case and determined that the original results of the PEB needed to be modified.  The disability description was changed to obstructive sleep apnea controlled with CPAP and he was found to be physically unfit with a disability rating of zero percent.  He disagreed with the modification and on
9 September 1998 a formal PEB was held. 

The formal PEB found the applicant unfit for continued service for the diagnosis obstructive sleep apnea with a zero percent disability rating.  The new DA Form 199 noted that symptoms of daytime somnolence, fatigue and witnessed apneaic episodes had been essentially resolved with CPAP, resulting in only mild industrial impairment.  He was found unfit for the diagnosis of bilateral epicondylitis manifested by pain on motion and reduced grip strength due to pain. He was rated for pain with a zero percent disability rating.  The applicant did not concur in the findings and recommendation and appealed.  The U. S. Army Physical Evaluation Board reviewed his appeal and adhered to its findings.  It noted that the original PEB was unaware of Department of Defense instructions modifying the VA Schedule of Rating Disabilities (VASRD) and therefore followed the VASRD rating schedule in awarding him a 50 percent disability rating.  It noted that his continued symptoms of somnolence and fatigue still represented 
mild industrial impairment and no change in the rating was indicated.  His case was forwarded to the USAPDA for further processing.  On 24 October 1998, the USAPDA affirmed the findings of the PEB.

On 9 December 1998, the applicant was discharged, with severance pay, for disability, in pay grade E-5.  He had completed over 11 years of creditable active service.  

On 10 January 2000, the VA awarded the applicant a combined disability rating of 70 percent for obstructive sleep apnea with associated fatigue (50 percent), intermittent lumbosacral strain (10 percent), and adjustment disorder with mixed anxiety and depressed mood (30 percent).  Service connection for bilateral epicondylitis was denied.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

The VASRD gives code 6847, sleep apnea syndromes, a 50 percent rating when the conditions require the use of a breathing assistance device such as a CPAP machine.

Department of Defense Instruction (DODI) 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities dated 14 November 1996 implements policy for rating disabilities of service members determined to be physically unfit and who are eligible for disability separation or retirement.  The DODI notes that not all of the general policy provisions in the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for DVA rating boards and are intended to provide guidance under laws and policies applicable only to the DVA.  DODI 1332.39 replaces those sections of the VASRD.  Paragraph 21, page 2-1-15 modifies the VASRD ratings for code 6847, sleep apnea syndromes.  It provides for a 100 percent rating when there is total industrial impairment; 50 percent when there is considerable industrial impairment; 30 percent when there is definite industrial impairment; and zero percent when there is mild industrial impairment.

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical 
condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation or unfitting at a lower percentage rating, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  Contrary to the applicant’s contention, the Army and the VA do not operate under the same policies and regulations.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level, 

3.  The Board acknowledges that having to wear a CPAP in order to sleep at night would certainly impair the applicant’s social adaptability.  However, the Army does not consider a soldier’s social impairment in determining whether he is medically unfit for duty or at what disability rating percentage.  All the evidence of record indicates that the applicant’s symptoms of daytime somnolence, fatigue and witnessed apneaic episodes had been essentially resolved with CPAP, resulting in only mild industrial impairment.  Even though in his appeal of the formal PEB findings he complained of further problems, the PEB determined that his continued symptoms of somnolence and fatigue still represented only mild industrial impairment.  

4.   The fact that the applicant required use of CPAP to resolve his sleep apnea problems made him unfit for military service because such equipment could not reasonably be used in a field environment.  However, the finding that the resolution of his sleep apnea problems only mildly impaired his ability to perform his duties resulted in the correct determination that he was authorized a zero percent disability rating.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jdm___  __ra____  __cg____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039801	
SUFFIX		
RECON		
DATE BOARDED	20000829	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.		
3.		
4.		
5.		
6.