IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20140019736 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___X____ ____X___ ____X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20140019736 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130003755, dated 15 October 2013. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by affording him processing through the Physical Disability Evaluation System (PDES) to determine if he should have been discharged or retired by reason of physical disability. a. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his type of discharge without evaluation under the PDES. ____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20140019736 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel. THE COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the Army Board for Correction of Military Records (ABCMR) decision for the applicant that denied his request to be considered by a medical evaluation board (MEB) and, if referred, to a physical evaluation board (PEB) for disability retirement instead of his transfer to the Retired Reserve as a consequence of a Fitness for Duty Determination Board (FFDDB). His counsel requests either correction to show that the applicant was medically retired at 30% effective the date of his separation in 2006 or that he be evaluated by an MEB and a PEB. 2. Counsel states, in effect, that the applicant, a former member of the Puerto Rico Army National Guard (PRARNG), while deployed on active duty between 14 January 2003 and 15 January 2004 in support of Operation Noble Eagle, suffered from sleep, respiratory, and excess snoring problems which continued to get worse following his deployment. After he returned to inactive duty in Puerto Rico with the PRARNG, he was evaluated and treated for these conditions by the Veterans Administration (VA) medical services with the end result that he was found 50% service-connected disabled. Because of these conditions and a tear in his left knee meniscus, the applicant was found by a FFDDB unable to perform his military occupational specialty and voluntarily transferred to the Retired Reserve. The counsel contends that the applicant should have been considered through the PDES by an MEB and a PEB for a disability retirement. 3. Counsel provides new expert sleep apnea medical evidence not previously seen by the board. a. A letter, dated 10 October 2014, from a civilian medical doctor specializing in sleep medicine and pulmonary diseases analyzing the applicant’s sleep apnea disability. b. A curriculum vitae of the medical doctor’s qualifications. c. Other documents provided with the request for reconsideration were previously considered by the board in the applicant’s prior board decision. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in docket number AR20130003755 on 15 October 2013. 2. The applicant served periods of enlistment between 10 May 1983 and 3 April 2007 in the U.S. Army Reserve (USAR) and the PRARNG rising to the rank of sergeant and completing 17 years creditable for Reserve retirement at age 60. 3. He was ordered to active duty on 14 January 2003 in support of Operation Noble Eagle and Operation Iraqi Freedom. He was honorably released from active duty and returned to the PRARNG on 15 January 2004 by reason of completion of his required active duty service. The applicant contends that while deployed on active duty, he suffered from sleep, respiratory, and excess snoring problems which continued to get worse following his deployment. After he returned to inactive duty with the PRARNG, he was evaluated and treated for these conditions by the VA medical services with the end result that he was found 50% service-connected disabled. Because of these conditions and a tear in his left knee meniscus, during an annual medical certification review conducted on 7 June 2006, he was determined by medical authority (captain, Medical Corps) to be unfit for duty and was assigned a permanent profile of 4 for physical capacity/stamina and 2 for lower extremities. As a result of these medical determinations, on 7 June 2006 a FFDDB found the applicant unable to perform his military occupational specialty. The applicant requested transfer to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 having completed 15 years but less than 20 years of qualifying service. 4. Available medical records and documents show: a. PRARNG orders 048-262 show that the applicant was ordered to active duty effective 14 February 2003 for a period not to exceed 365 days for deployment in support of Operation Noble Eagle. b. DD Form 2796 (Post-Deployment Health Assessment (PDHA)) issued by a 47th Combat Support Hospital health provider, dated 28 May 2003, shows that the applicant had problems with sleeping and should be referred for insomnia evaluation. This DD Form 2697 also shows that the applicant was deployed to Camp Patriot, Kuwait, in Operation Iraqi Freedom from 19-28 May 2003. c. Standard Form 600 (SF 600) (Chronological Record of Medical Care), dated 31 July 2003, shows that the applicant was seen at the Robinson Health Clinic, Fort Bragg, by a physician’s assistant for snoring which was disrupting the applicant’s sleep patterns. The applicant was prescribed Flonase for allergic rhinitis and referred for a computerized tomography (CT) scan of his sinuses. d. SF 519-B (Radiological Consultation Request/Report), dated 11 August 2003, published by Womack Army Medical Center, Fort Bragg, reported that the applicant had a soft tissue nodule in the left nasal passage and moderate S-shaped deviation of the nasal septum. e. SF 600, dated 29 October 2003, given at Robinson Health Clinic, Fort Bragg, shows a follow-up medical evaluation of a deviated septum and recommended re-evaluation in a month or sooner. f. DD Form 2697 (Report of Medical Assessment), dated 12 December 2003, shows that the applicant had respiratory and snoring concerns, had high blood pressure, and was taking medication for high blood pressure and cholesterol (Cozaar and Zocor). The evaluating physician’s assistant did not refer the applicant for further evaluation. g. DD Form 2796, dated 12 December 2003, shows that the applicant had respiratory concerns but the evaluating physician’s assistant did not refer the applicant for further evaluation. This DD Form 2697 also shows that the applicant had been deployed to Kuwait, Southwest Asia, and aboard ship, in Operation Noble Eagle. h. Medical Primary Care Progress Notes from the San Juan, Puerto Rico, VA Medical Center (VAMC), dated 1 November 2004, shows that the applicant complained of tiredness, hoarseness and air hunger, and frequent drowsiness and being sleepy during daily hours. i. On 17 May 2005, the San Juan VAMC conducted a sleep study procedure on the applicant and concluded that sleep apnea was related to his sleep/wake schedule disturbance. j. On 6 July 2005, the San Juan VAMC prescribed and issued the applicant a continuous positive airway pressure (CPAP) machine. k. A San Juan VA Regional Office rating decision issued on 28 March 2006 granted the applicant 50% disability for sleep apnea. The reason for this decision was based on “service medical records” which showed treatment for chronic snoring on 31 July 2003 and 12 December 2003, a VA outpatient treatment report showing treatment for sleeping problems and tiredness, and a 6 July 2005 VA CPAP examination which confirmed the diagnosis of sleep apnea. l. On 7 June 2006, four documents were issued: (1) SF 600 issued by the Troop Medical Clinic, Camp Santiago Training Site, Salina, Puerto Rico, showing that the applicant was diagnosed with 50% disability for sleep apnea. (2) DA Form 7349 (Annual Medical Certificate) showing sleep apnea with 50% disability, declaring the applicant unfit for continued USAR duty, and assigning him a permanent profile of 4 for physical capacity/stamina and 2 for lower extremities (due to his left knee injury). (3) DA Form 3349 (Physical Profile) showing a permanent profile of 4 for physical capacity/stamina and 2 for lower extremities. (4) PRARNG FFDDB Acknowledgement Statement showing that the applicant had a permanent profile and that he requested transfer to the Retired Reserve with early qualification of eligibility to received retired pay at age 60 if completed 15 but less than 20 years of qualifying service. m. On 2 August 2006, the PRARNG FFDDB published its determination concerning the applicant, that because of his permanent profile (P-4 and L-2) as a result of his sleep apnea and left knee meniscus tear, he was unfit for retention in the PRARNG. The FFDDB directed administrative separation. n. On 9 June 2006, the applicant was issued a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) discharging him from the PRARNG and transferring him to the USAR Control Group (Retired). The NGB Form 22 shows that he had 17 years creditable for retired pay. On 3 January 2007, the applicant was issued a letter notifying him of his eligibility for retired pay at age 60. o. On 14 May 2012, the PRARNG issued a memorandum, subject: Line of Duty Determination (applicant). It stated that his rhinitis and obstructive sleep apnea occurred during Operation Enduring Freedom and was approved as having occurred in the line of duty (LOD). (1) Attached to the memorandum was a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 March 2012, stating that the applicant’s injury (sleep apnea) was considered to have incurred in the line of duty. Details state that during the applicant’s mobilization from 2003-2004, he presented a history of treatment for sleeping, respiratory, and snoring problems. After release from active duty (REFRAD), the applicant continued to follow up with the local VA and was diagnosed with mild obstructive sleep apnea and granted 50% compensation. (2) The LOD was not completed as required by regulations prior to REFRAD which contributed to the applicant being erroneously separated on 9 June 2006 without proper referral to a MEB/PEB. p. On 19 February 2013, the PRARNG G1 lieutenant colonel published a memorandum acknowledging that the PRARNG errored in the applicant’s medical processing for separation and recommended that the record be corrected by referring the applicant to the PDES for medical separation evaluation. q. On 22 April 2013, the NGB published an advisory opinion recommending approval of the PRARNG’s recommendation. The NGB concluded that the FFDDB should have referred the applicant to the PDES. r. With the current request for reconsideration, the applicant’s counsel provided new expert witness sleep apnea medical evidence not previously seen by the board. In a letter, dated 10 October 2014, from a civilian medical doctor specializing in sleep medicine and pulmonary diseases, the doctor concluded in effect that the applicant continues to suffer from severe obstructive sleep apnea which was diagnosed in May 2005 and initially reported by the applicant in 2003 while on active duty. 6. The Board requested that Office of the Surgeon General (OTSG), Department of the Army, provide an advisory opinion on this case. At the direction of the OTSG, two doctors from Madigan Army Medical Center reviewed the evidence of the case and available medical records and opined that the applicant should be afforded a MEB/PEB. a. They opined that the applicant more than likely had undiagnosed sleep apnea prior to entering active duty service in January 2003. A determination of "existed prior to active duty service" is supported by evidence that he reported symptoms within about 6 months of entering on active duty, regarding a condition that takes years to develop (barring acute facial trauma). b. They further opined that the applicant more than likely had undiagnosed sleep apnea while serving on active duty from January 2003 to January 2004. This is supported by the evidence that he was diagnosed as having sleep apnea by a polysomnogram within 1 year after REFRAD for a condition that develops over a period of years (barring acute facial trauma). The applicant's sleep apnea was not permanently aggravated by active duty service. c. The allergic rhinitis, nasal septal deviation, and conch bullosa polyp more than likely caused a delay in the diagnosis of sleep apnea while the applicant was on active duty, because these three conditions had other potential causes that would explain his snoring symptoms. d. The applicant specifically noted sleep symptoms on his May 2003 re-deployment PDHA upon returning from Operation Iraqi Freedom and later reported to sick call with symptoms of sleep apnea in July 2003. The Army medical providers had an opportunity and the Army has a duty to make appropriate diagnosis and provide appropriate treatment for Soldiers. Had the diagnosis been made when it should have, he would have likely ended up with a service-incurred condition MEB like other Soldiers in 2003 who were diagnosed with sleep apnea prior to REFRAD. e. The applicant was provided a copy of this advisory opinion for response, but the Board has not received a response from the applicant. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement or severance pay benefits. One of the criteria is that the disability must have been incurred or been aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the PDES. a. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. b. Paragraph 3-1 states the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. c. Paragraph 3-2b (processing for separation or retirement from active duty) states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes that- (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. 2. DOD Directive 1332.18 covers separations or retirement for physical disability. Paragraph 3.3 states the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank, or rating because of disease or injury. Any member of the Ready Reserve who is pending separation for a nonduty related impairment or condition shall be afforded the opportunity to enter the PDES for a determination of fitness. If determined fit, the Secretary concerned may deem the member medically qualified for retention in the Ready Reserve in the specialty for which he was found fit. 3. DOD Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty. Paragraph E2.P2.3 states members of the Ready Reserve with non-duty related impairments and who are otherwise eligible will be referred into the PDES upon the request of the member or when directed under service regulations. Referral will be solely for a determination of fitness for duty. 4. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. a. Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40 with the following caveat: USAR or ARNG Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9 and 10 of this regulation. b. Paragraph 3-30 (neurological disorders) concerns narcolepsy, sleepwalking, or similar sleep disorders (see paragraph 3-41). The evaluation and treatment of these diagnoses by a neurologist or other sleep specialist should be routinely sufficient. c. Paragraph 3-41 (general and miscellaneous conditions and defects) states one of the causes for referral to an MEB is 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 CPAP, surgery, or an oral appliance is a cause for referral. 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. DISCUSSION: 1. The applicant specifically noted sleep symptoms on his May 2003 re-deployment PDHA upon returning from Operation Iraqi Freedom and later presented on sick call with symptoms of sleep apnea in July 2003. 2. Review of the applicant’s military and medical records by expert military medical authorities given in the advisory opinion from Madigan Army Medical Center under the direction of OTSG finds the evidence supports that the applicant's sleep apnea most likely existed prior to his entry on active duty in 2003, as well as during his active duty service. However, it was also opined that had the applicant's sleep apnea diagnosis been made when it should have, he would have likely ended up with a service-incurred condition MEB like other Soldiers in 2003 who were diagnosed with sleep apnea prior to REFRAD. The applicant should have been afforded review through the PDES for proper review of his sleep apnea and determination of proper disposition concerning his separation. 3. Evidence presented from an expert civilian medical authority on sleep apnea supports this conclusion. Both the PRARNG and the NGB present advisory opinions attesting to error in the applicant’s separation and that he should have been processed through the PDES for separation consideration. 4. Accordingly, the applicant should be evaluated through the PDES for determination of appropriate separation processing. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140019736 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140019736 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2