BOARD DATE: 1 May 2020 DOCKET NUMBER: AR20170003816 APPLICANT REQUESTS: an increase in his disability rating by adding his claim for obstructive sleep apnea (OSA). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3947 (Medical Evaluation Board Proceedings) * DA Form 199 (Informal Physical Evaluation Board (PEB)) Proceedings * DA Form 3349 (Physical Profile) * Standard Forms 600 (Chronological Record of Medical Care) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he went through the medical evaluation board (MEB) / integrated disability evaluation system (IDES) process and was diagnosed with sleep apnea prior to the completion of his board and prior to his discharge. He was not allowed to add sleep apnea to his other claims which resulting in a 20 percent disability rating. This error resulted in his sleep apnea claim having to be submitted as a separate claim which resulted in a 20 percent lower rating than it should have been if it was included with his other claims. This carries a financial impact. If this was done correctly all of his claimed disabilities would have been submitted at one time resulting in a 90 percent rating versus the 70 percent rating he was given as a result of having to submit it separately. 3. On 23 July 2012, a MEB found the applicant's bilateral knee chondral defects did not meet retention standards. The MEB referred the applicant to a PEB. On 20 September 2012, after being informed of the approved findings and recommendation of the MEB, the applicant agreed. 4. On 2 April 2013, the applicant was issued a temporary P3 profile due to sleep apnea. 5. On 15 April 2013, an informal PEB found the applicant physically unfit due to left and right knee osteochondral defects and bilateral pes planus. The PEB recommended a disability rating of 30 percent and permanent disability retirement. 6. On 16 April 2013, after being advised of the findings and recommendations of the informal PEB and receiving a full explanation of the findings, recommendations, and legal rights, the applicant concurred and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to permanent disability. He completed 3 years, 9 months, and 9 days of net active service this period. 8. On 3 April 2020, an Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, which states, in part, based on the available medical record, the applicant did not met retention standards due to the knees and feet conditions which led to medical separation from the Army. The applicant’s OSA was diagnosed after initiation of the disability evaluation system (DES) presumption of fitness, and he had a temporary profile for OSA. There was no evidence excessive day-time somnolence or OSA significantly interfered with duty performance prior to initiation of the MEB, or prior to separation. The applicant was being treated with continuous positive airway pressure (CPAP) with improvement of symptoms, and OSA controlled on CPAP is not unfitting for continued service. Therefore, based on the available evidence, a referral of the applicant’s record to integrated DES (IDES) for consideration for an increased back rating (and military medical retirement) is not indicated at this time. The complete advisory opinion is available for review and consideration by the board. 9. In response to the medical advisory, the applicant states, in part, his issue and reason for bringing this case to the board is because he was not allowed to add the OSA to the IDES process and it resulted him receiving an overall rating of 70 percent when it should have been 90 percent. He understands the addition of the OSA to MEB during the IDES would not have affected his Army disability rating; however, it would have affected his VA disability rating which is his concern. During the process he asked if he could add his OSA to his claim and was told he could not. He later found his OSA could have been added during his IDES process and it was disheartening. Having his OSA added during the IDES process means it would have been processed with all of his other claims instead, it had to be processed as a separate claim. The 20 percent difference carries a financial gain that would be beneficial to him and his family. 10. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. 11. 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). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 12. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains DES. The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory Opinion and the applicant’s rebuttal, the Board found insufficient evidence to grant relief. 1. The Board agreed with the Medical Advisory Opinion that the applicant’s OSA at time of discharge met retention standards. The DOD only compensates for conditions it determines to be unfitting. Based on the applicant’s military medical records, there is no indication his OSA either failed Army retention standards or was unfitting while on active duty. AR 40-501, Standards of Medical Fitness, states that OSA only fails these retention standards and therefore could be potentially unfitting when it causes daytime sleepiness or snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, nasal continuous positive airway pressure (CPAP), surgery, or an oral appliance. The records show that he had responded well to CPAP treatment with a decrease in his daytime sleepiness. Because the applicant’s OSA was not unfitting during the applicant’s period of active service, sending the applicant’s case to DES for consideration of OSA is not warranted. 2. The Board found that the Medical Advisory Opinion was incorrect in one regard. It incorrectly states that because the applicant’s OSA was diagnosed after initiation of a DES, the “presumption of fitness” applied and that is why it could not be included with his MEB diagnoses. This is an incorrect application of the “presumption of fitness” as a presumption of fitness finding only applies to service-members who are eligible for retirement and the applicant was not retirement eligible at time of discharge.“ 3. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. If the applicant has yet to file a claim with the Veterans Administration for his OSA, he may consider doing so. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 either are 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 retired pay and have access to all other benefits afforded to military retirees. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 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). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Within 15 days of receiving the proposed disability ratings from the Disability Rating Activity Site (D-RAS), the PEB will apply the rating using the diagnostic code(s) provided by the D-RAS to the Service Member’s unfitting conditions and publish the disposition recommendation. For example, if the PEB identifies a condition to the D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform disorder rated as psychotic disorder NOS (VASRD 9210). e. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003816 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1