RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX                                                                    	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100768 		                             SEPARATION DATE:  20041010
BOARD DATE:  20120209

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92G, Food Service Specialist), medically separated for obstructive sleep apnea (OSA).  The CI was seen by the pulmonary clinic, diagnosed with OSA requiring use of a breathing assistance device with continuous airway pressure (CPAP).  His treatment with CPAP was successful and he was able to fully function in garrison; however, he was not deployable and therefore underwent a Medical Evaluation Board (MEB).  OSA was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  No other conditions appeared on the MEB’s submission.  Other conditions included in the Disability Evaluation System (DES) packet will be discussed below.  The PEB adjudicated the OSA condition as unfitting, rated 0%; with application of DoDI 1332.39.  The CI made no appeals, and was medically separated with a 0% combined disability rating.

CI CONTENTION:  The CI states:  “After deployment from Iraq I was diagnosed with Chronic Obstructive Sleep Apnea which deemed me physically unfit for Army Retention standards according to PEB proceedings, but I was rated by the VA 50% in which I am still being treated for w/CPAP machine.”  He mentions no additionally contended conditions.

RATING COMPARISON:

Service IPEB – Dated 20040505	VA (1 Mo. After-Separation) – All Effective Date 20041011	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sleep Apnea	6847	0%	Chronic Obstructive Sleep Apnea	6847	50%*	20041105	
↓No Additional MEB/PEB Entries↓	Allergic Rhinitis Chronic Rhinosinusitis	6522	30%	20041105	
	Hypertension	7101	10%	20041214	
	0% x 1/Not Service Connected x 5	20041214	
Combined:  0%	Combined:  70%	
* VA rating based on exam most proximate to date of permanent separation.

ANALYSIS SUMMARY:  

Obustructive Sleep Apnea.  CI’s symptoms regarding this condition started in or about June 2003.  He was diagnosed, via sleep studies, with OSA requiring use of a breathing assistance device with continuous airway pressure (CPAP).  He was issued a CPAP machine that he was/is required to use indefinitely at night.  The use of CPAP did not appear to completely resolve his symptoms of daytime sleepiness, and although the CI was able to function in garrison, he was unable to deploy to field conditions.  The PEB’s DA Form 199 assigned a 0% rating under DODI 1332.39 (E2.A1.2.21), and based the fitness adjudication solely on field impediments to the use of CPAP.  Contemporary PEBs across all of the services no longer consider OSA to be unfitting solely on this basis, but the Board, by legal opinion and firm precedent, does not make contrary recommendations to a PEB determination that a condition was unfitting.  VASRD §4.97 mandates a minimum rating of 50% under 6847 for OSA requiring a breathing assistance device.  In consideration of this evidence, and IAW DoDI 6040.44, the Board must recommend a separation rating of 50% for the OSA condition.

Remaining Conditions.  Other conditions identified in the DES file were foot condition, bunions, knee pain, upper back pain, chest pain, sinusitis, asthma and hypertension.  Several additional non-acute conditions or medical complaints were also documented.  None of these conditions were clinically or occupationally significant during the MEB period, none carried attached profiles, and none were implicated in the commander’s statement.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  No other conditions were service connected with a compensable rating by the VA within 12 months of separation or contended by the CI.  The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on DoDI 1332.39 for rating OSA was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the obsutructive sleep apnea condition, the Board unanimously recommend a permanent service disability rating of 50%, coded 6847 IAW VASRD §4.97.  The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows and that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Obstructive Sleep Apnea	6847	50%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110822, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl