BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015625 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015625 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________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. BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015625 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: 1. The applicant requests that his sleep apnea be found unfitting and added to his current disability rating. 2. The applicant states: a. His primary duty for the Army was as an aviator (UH-60 pilot). He was grounded permanently for sleep apnea, which is a disqualifying condition for aviators. His unit retained him on the books hoping that he would return to flight status. He was unable to perform any other additional duties as well, but he was denied a rating for this condition in his appeal due to the placement actions of his unit. b. A Physical Evaluation Board (PEB) convened on 31 October 2014 at Fort Sam Houston, TX. He reviewed the DA Form 199 (PEB Proceedings) and the notes made by the PEB. He is submitting new evidence from his former commander, Major (MAJ) Exx E. Lxx, explaining the reason he remained in the aviator position while undergoing the Medical Evaluation Board (MEB)/PEB process. MAJ Lxx also explains the reasons he received favorable officer evaluations. He was retained in the position on the possibility of returning to flight status in the future. He was retained in this slot throughout the MEB/PEB process until his retirement from the Arkansas Army National Guard (ARARNG). c. He was unable to return to flight status for the reasons indicated on his permanent grounding slip or complete an entire duty day. In 2006, he was mobilized for Operation Iraqi Freedom (OIF). He served as a UH-60 Blackhawk pilot. During his deployment to Iraq, he developed symptoms of daytime sleepiness with fatigue. He underwent an examination by the primary medical officer in Iraq. After the examination, he was temporarily removed from aviation flight duties. He continued to experience these symptoms throughout the deployment and upon return to the United States. He was unaware of what the symptoms represented. d. In March 2010, he was mobilized for Kosovo Force 13 and was injured in May 2010. During this deployment, he received medical treatment from military medical personnel (Troop Medical Clinic (TMC)) and the Department of Veterans Affairs (VA). Once again, he expressed the symptoms to medical personnel and a sleep apnea study was ordered in October 2010. The VA conducted the study in May 2011. He was diagnosed with severe obstructive sleep apnea. e. He contacted MAJ Hxx, the treating physician in Iraq and the primary flight medical officer, by email. On 12 August 2011, MAJ Hxx submitted a memorandum to the VA indicating these symptoms began during his OIF deployment while he was serving as an aviator. MAJ Hxx also indicated that the applicant experienced daytime fatigue, hyper-somnolence, and difficulty obtaining restful sleep. MAJ Hxx further indicated that he was unable to obtain a diagnostic polysomnograph to confirm the diagnosis due to mission requirements and their physical location in Balad, Iraq. MAJ Hxx also indicated that he suspected obstructive sleep apnea. f. He was ordered to report to the TMC, Camp Robinson, AR, on 16 November 2011, for a medical evaluation pertaining to flight status as an aviator. He reported to Captain (CPT) Txx, the flight surgeon. After the examination and review of his medical records, he was permanently disqualified from flight duties as an aviator for right shoulder and right hip pain greater than 1 year, obstructive sleep apnea in accordance with U.S. Army Aeromedical Policy Letters and Technical Bulletins, and severe depression. He was issued a DA Form 4186 (Medical Recommendation for Flying Duty). MAJ Pxx submitted a memorandum for record (MFR), dated 23 October 2014, confirming the legitimacy of this form preventing him from performing duties as a UH-60 pilot and maintenance test pilot. g. Although the PEB stated their opinion, he had not performed any of the duties, primary or additional, assigned to aviators since May 2010. Aviation unit efficiency is mainly dependent on qualified aviators on full flight duty. On 14 April 2014, CPT Mxx submitted a memorandum to the Medical Command requesting a Full Flight Duty Evaluation (FFDE) pertaining to his medical status. CPT Mxx stated that he was on profile and was permanently grounded from flying by CPT Txx. CPT Mxx indicated that due to the applicant's right shoulder and right hip pain, use of a continuous positive airway pressure (CPAP) machine, and obstructive sleep apnea, the applicant was unable to perform his duties as a pilot. CPT Mxx recommended MEB/PEB processing. h. In 2012, his unit commander reassigned him on the Unit Manning Report to an Aviation Material Officer slot, as indicated on the DA Form 199. He was reassigned in order to maintain qualified aviators in designated aviator slots. However, he had never performed any duties pertaining to an Aviation Material Officer nor had he been trained as one. i. On 13 November 2013, CPT Dxx submitted a DA Form 7652 (Physical Disability Evaluation System (PDES) – Commander's Performance and Functional Statement). CPT Dxx clearly stated that he could only perform 1/10 functional activities that every Soldier must be able to perform and he was limited to administrative tasks that required little physical exertion. CPT Dxx also indicated that he could not take any portion of the Army Physical Fitness Test and appeared to be in physical pain to some degree at all times, walked with a limp, showed no signs of improvement, and had not returned to flight status. CPT Dxx further stated that he could not perform a full duty day. Since May 2010, he had been unable to perform any duties pertaining to his primary duty as an aviator or any additional duties. j. His inability to perform his duties as an aviator and Soldier has been clearly documented by Colonel Pxx (Flight Surgeon), MAJ Lxx (Executive Officer), MAJ Hxx (Flight Medical Officer), CPT Txx (Flight Surgeon), CPT Mxx (Commander), CPT Dxx (Commander), and MAJ Pxx (Commander). MAJ Hxx documented his symptoms pertaining to obstructive sleep apnea during his OIF deployment. After returning to the States and obtaining a sleep study, he was diagnosed with severe obstructive sleep apnea. CPT Txx disqualified him from flight duties as an aviator for obstructive sleep apnea along with other injuries in accordance with the U.S. Army Aeromedical Policy Letters and Technical Bulletins. k. This policy clearly states, "Rated Aviation Personnel (All Classes): Sleep apnea is disqualifying for aviation duty. Class 2, 2F, 3, and 4: Waivers are possible and granted on a case-by-case basis if the condition is treated with weight loss, dental device, surgery, or use of CPAP devices with documented resolution via a polysomnography." Nasal CPAP is a common treatment, but may not be feasible in the Army aviation environment with the possibility of service in austere environments. He was never granted a waiver. Although he is under treatment by use of a CPAP, it is not feasible in the Army aviation environment. l. He also holds a Federal Aviation Administration pilot's license that he can never use due to the permanent disqualification. He was rated in UH-60 Blackhawk, UH-1V Medical, UH-1H Lift and Assault, and the civilian OH-58. He is an undeployable aviator and will never perform aviation duties again, military or civilian, or be acceptable for any military unit due to his current medical status. 3. The applicant provides the following: * Burn Pit Health Hazards memorandum * Sleep Study results * Memorandum to VA * DA Form 4186 * Standard Form (SF) 600 (Medical Record – Chronological Record of Medical Care) * MEDCOM memorandum * DA Form 7652 * MFR * DA Form 67-9 (Officer Evaluation Report (OER)) * Compensation and Pension Examination status note * Flight Surgeon's Aeromedical Checklists * memorandum from flight surgeon * letter from the VA * MEB/PEB Appeal memoranda * Gmail notes * letter to PEB counsel CONSIDERATION OF EVIDENCE: 1. The applicant was appointed in the ARARNG, as a warrant officer one, on 1 September 1992, with prior ARNG enlisted service. He held military occupational specialties 152G (Aircraft Army Maintenance Technician) and 153B (Flight Safety Technician). 2. The ARARNG issued the following orders on/for: * Number 149-50, 2 August 1993, assigned him from MOS 153B to MOS 153D (UH-1 Pilot), effective 1 August 1993 * Number 233-077, 19 August 2002, changing his MOS to 153D effective the same date 3. He was honorably discharged from the ARARNG on 1 May 2005 and was transferred to a reserve unit. 4. He was appointed in the ARARNG, as a chief warrant officer three, on 30 June 2005 in MOS 153D2. 5. He entered on active duty in support of OIF on 11 February 2006. He served in MOS 153D in Kuwait from 22 August 2006 to 5 August 2007. 6. He provided a Burn Pit Health Hazards memorandum, dated 20 December 2006, pertaining to the burn pit at Balad Air Base as a health concern. 7. He was released from active duty (REFRAD) on 6 September 2007 and was transferred to an ARARNG unit. 8. On 7 September 2007, he was issued a Notification of Eligibility for Retired Pay at Age 60. 9. He entered active duty in support of Operation Enduring Freedom on 7 May 2010. He served in MOS 153D and on Post Deployment/Mobilization Respite Absence from 2 to 9 August 2010. He was REFRAD on 15 August 2010 and transferred to the ARARNG. 10. He also provided the following: a. Sleep Study results showing he underwent a study on 31 May 2011 and was diagnosed with obstructive sleep apnea syndrome, with good response to CPAP therapy. b. A memorandum to the VA, dated 12 August 2011, wherein the Aeromedical Physician Assistant advised the VA: (1) The applicant served in the Army from February 2005 to August 2007 in support of OIF. He conducted a Flying Duty Medical Examination on the applicant. The applicant was diagnosed with hypertension and hypercholesterolemia while on active duty. During the deployment, he was also experiencing high blood pressure that was not responding to treatment. (2) The applicant also experienced daytime fatigue, hyper-somnolence, and difficulty obtaining restful sleep. He became suspicious that the applicant may have obstructive sleep apnea, which could explain his symptoms; however, they were unable to obtain a diagnostic polysomnography to confirm the diagnosis. Mission requirements and physical location prevented them from obtaining that useful study in country. c. A DA Form 4186, dated 16 November 2011, showing the applicant was permanently medically disqualified for flying duty due to right shoulder and right hip pain, obstructive sleep apnea depression, and Selective serotonin reuptake inhibitors (antidepressants) use. The form shows the applicant acknowledged the recommendation on the same date. d. An SF 600 (Medical Record – Chronological Record of Medical Care) showing the applicant received medical treatment for acute stress. e. A MEDCOM memorandum, dated 14 April 2012, wherein CPT Mxx requested an FFDE for the applicant during April or May. He stated that the applicant was currently on profile and had been permanently grounded from flying by CPT Txx at the TMC. The applicant had right shoulder and right hip pain incurred during a vehicle wreck while on active duty orders in 2010. The applicant was also on a CPAP machine at that time. In his opinion the applicant would need to go through the MEB/PEB process. If the applicant did not want to be evaluated, he recommended the applicant be discharged from the ARARNG. f. A DA Form 67-9 for the period from 29 January 2012 to 28 January 2013 for his duties as an Aviation Material Officer, MOS 153D, ARARNG. The form shows in: (1) Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in the "Yes" block for Physical – Maintain appropriate level of physical fitness and military bearing. (2) Part V (Performance and Potential Evaluation), the rater entered the following comments: "Unfortunately, [the applicant] was injured during a 2010 automobile accident while on Title 10 status at the mobilization station. He is currently in the Medical Review Process, and has been unable to physically attend any drills during this rating period. He is qualified as an Aviation Maintenance Test Pilot in the UH-60 airframe." (3) Part V (Senior Rater (SR)), the SR entered the following comments: "Unfortunately, [the applicant's] injuries have reduced his ability to participate in unit training on a regular basis for several years. Recommend a rapid completion of the Medical Review Process, and not to retain the Soldier." g. A DA Form 7652 the applicant's commander completed on 13 November 2013 and indicated the applicant had submitted documents showing a disability rating awarded him by the VA. The applicant was limited to administrative taskings that required little physical exertion. The applicant walked with a limp and had gained a significant amount of weight since he was involved in an automobile accident in 2010. Soldier showed no signs of improvement and had not returned to flight status. h. A Compensation and Pension Examination status note, dated 17 January 2014, wherein he indicated he had sleep apnea. 12. On 5 February 2014, an MEB convened and determined the applicant's diagnosed medical conditions of right hip bursitis and right rotator cuff tear failed to meet medical retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3. a. The MEB found his medical conditions of traumatic brain injury (TBI), post-traumatic headaches, persistent depressive disorder, obstructive sleep apnea, degenerative joint disease thoracic, lumbosacral strain, and cervical strain met medical retention standards. The MEB noted that the applicant's conditions that did not meet medical retention standards were properly listed on the DA Form 3947, Narrative Summary, and DA Form 3349 (Physical Profile). The MEB recommended his referral to a PEB. b. The applicant did not concur with the findings and recommendations of the MEB and elected to appeal. The MEB noted the applicant did not desire to continue on active duty under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). c. The findings and recommendations of the MEB were approved on 14 March 2014 after his appeal had been considered. 13. An MFR, dated 3 March 2014, states an independent medical record review found the applicant's MEB adequately reflected the complete spectrum of his injuries and illnesses. The obstructive sleep apnea with a date of diagnosis of June 2011 was found to meet medical retention standards. 14. He further provided the following: a. Two MEB Appeal memoranda, dated 7 March and 27 August 2014, wherein he requested appeal of his MEB pertaining to the assertion that his sleep apnea was not unfitting. b. Flight Surgeon's Aeromedical Checklists – Aeromedical Policy Letters and Aeromedical Technical Bulletins, revised on 28 May 2014, which stated sleep apnea was disqualifying for aviation duty and nasal CPAP is a common treatment, but may not be feasible in the Army aviation environment with the possibility of service in austere environments. c. An MFR, dated 23 October 2014, wherein the ARARNG Training Officer stated the applicant had medical conditions that resulted in his down-slip in his aviation duties. That prevented him from performing duties as a UH-60 Pilot and Maintenance Test Pilot. 15. On 31 October 2014, a formal PEB convened and determined the applicant's medical conditions of right rotator cuff tear, right hip bursitis, and right knee strain as the result of a vehicle accident did not meet medical retention standards. The DA Form 199 stated: a. The PEB determined that his medical conditions of right hip strain, TBI, post-traumatic headaches, persistent depressive disorder, obstructive sleep apnea, degenerative joint disease thoracic, lumbosacral strain, and cervical strain were not unfitting and met medical retention standards because the MEB indicated those conditions met retention standards. The MEB had indicated those conditions met retentions and did not indicate that any of those conditions caused profile limitations (i.e., limitations on functional activities) and did not indicate that performance issues, if any, were due to those conditions. b. Regarding the applicant's contention he was unfit for migraines and sleep apnea, those conditions were not unfitting based on the following evidence. There were no duty limitations or restrictions related to either condition on the DA Form 3349. On the DA Form 7652, the Commander did not mention either condition as interfering with duty performance. The OERs in the file did not state that either condition had interfered with duty performance. c. The PEB recommended his permanent disability retirement at 40 percent. He did not concur and elected to appeal. 16. He also provided the following: a. A memorandum from a flight surgeon, dated 11 November 2014, wherein he stated that the applicant was seen in the TMC. b. A letter wherein the VA advised him of an increase rating for right shoulder strain effective 8 January 2014. The letter also shows he was previously awarded service-connected disability ratings for sleep apnea (50%), depressive disorder, cervical strain, and right hip and right knee strain. c. Two PEB Appeal memoranda, dated 12 November and 22 December 2014, wherein he requested appeal of his PEB pertaining to the assertion that his sleep apnea was not unfitting. d. Gmail notes, dated 6 January 2015, pertaining to a conversation about his retirement. e. A memorandum to the applicant's PEB counsel, dated 25 February 2015, wherein MAJ Lxx stated the applicant was permanently grounded on 16 November 2011 and remained in an operational aviation flight slot (153AL, Aviation Material Officer) in the 77th Theater Aviation Brigade on the possibility of return to flight status in his future. The applicant held that slot while he progressed through the MEB/PEB process until his medical retirement from the ARARNG. He was unable to meet Aircrew Training Program requirements due to his medical grounding. The applicant earned favorable officer evaluations due to his attitude and willingness to support the brigade mission, though he was permanently grounded. 17. The U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and issued orders on 22 December 2014 permanently retiring him and placing him the Retired List effective 26 January 2015. 18. He was honorably retired from the ARARNG on 25 January 2015. 19. On 15 July 2016, an advisory opinion was provided by USAPDA Medical Advisor. The USAPDA official reiterated the applicant's request and stated: a. The applicant's MEB listed his sleep apnea as one of the diagnoses that met medical retention standards in accordance with chapter 3 of AR 40-501. The applicant requested an independent medical review of that issue and on 3 March 2014 the physician assigned to the review opined that the MEB findings regarding the sleep apnea were correct. The applicant then filed an appeal to the MEB citing the same issue. On 11 March 2014, the MEB reaffirmed their findings that his sleep apnea met medical retention standards, did not adversely affect the performance of his presently assigned military duties, and did not result in the early termination of his 29 years of military service. There were no physical profile restrictions for his sleep apnea condition. b. On 31 October 2014, a formal PEB found the applicant unfit for several conditions that did not meet medical retention standards and recommended permanent disability retirement at 40 percent. The PEB found that his sleep apnea was not unfitting. The applicant appealed the PEB's findings regarding his condition of sleep apnea and submitted the same documents regarding his flight duties that were contained in his present petition to the Army Review Boards Agency. The PEB reviewed the appeal and continued to find the applicant fit for duty indicating that there were no medical restrictions contained in the MEB regarding his sleep apnea and his OERs regarding his assigned military duties over the past several years (before the MEB/PEB) all reflected exceptional performance and no indication that his sleep apnea was interfering with his assigned duties of Aviation Maintenance Officer, Aviation Material Officer, and Unit Safety Officer. c. The USAPDA also received the identical appeal from the applicant at the conclusion of the PEB case. The USAPDA affirmed the PEB findings and provided a written response on 22 December 2014. Along with support of the PEB's rationale as to why the applicant was fit for sleep apnea, the USAPDA also noted that the applicant's Officer Record Brief, dated 15 November 2013, listed his duty title as Aviation Material Officer since 2012. d. The PEB's findings were supported by the preponderance of evidence, were not an abuse of discretion, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulations. Recommend no changes to the applicant's military records. 20. The advisory opinion was provided to the applicant on 14 September 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 40-501, chapter 3, in effect at the time, provided for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating. Members with conditions listed in this chapter were considered medically unfit for retention on active duty and were referred for disability processing. 2. AR 635-40 establishes the Army PDES according to the provisions of Title 10, U. S. Code, Chapter 61, and DOD Directive 1332.18. It 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. After establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability. Percentage ratings reflect the severity of the Soldier's medical condition at the time of the rating. 3. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active 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. The VA does not make a determination of whether the medical condition is disqualifying for retention in the Army. DISCUSSION: 1. The applicant requests the addition of sleep apnea to his unfitting conditions. 2. The evidence of record shows in 2011, he began experiencing right shoulder and hip pain as the result of a 2010 automobile accident and he was also diagnosed with sleep apnea. He was awarded a disability rating from the VA for these medical conditions. In November 2011, he was permanently medically disqualified for flying duty due to right shoulder and right hip pain, obstructive sleep apnea, depression, and use of selective serotonin reuptake inhibitors (antidepressants). His command recommended disability processing. 3. The MEB listed his sleep apnea as one of the diagnoses that met medical retention standards. On appeal, the MEB reaffimed their findings that this condition met medical retention standards. A PEB also found his sleep apnea was not unfitting. On appeal, the PEB continued to find his sleep apnea not unfitting. The PEB recommended his permanent retirement with a 40% rating for his other medical conditions. 4. The available medical evidence shows all of his medical conditions were considered throughout his medical disability processing. There is no evidence he was precluded from offering any relevant material evidence pertaining to his sleep apnea in his case. 5. A disability rating assigned by the Army is based on the level of disability created by unfitting conditions at the time of Soldier's separation. The fact that the VA awarded him a service-connected disability rating for sleep apnea that the Army did not find unfitting is not evidence of error in his disability evaluation system 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) AR20150015625 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015625 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2