RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01360
BRANCH OF SERVICE:  Army	BOARD DATE:  20140917
SEPARATION DATE:  20040705

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (91W30/Health Care Specialist) medically separated for lung disease.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The lung condition, characterized as “obstructive lung disease” and “restrictive lung disease,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (obstructive sleep apnea) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “obstructive lung disease” as unfitting rated at 10%.  The IPEB also adjudicated obstructive sleep apnea as unfitting but cited it could not be separately rated citing avoidance of pyramiding.  The remaining restrictive lung disease condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “During my medical board process, the separating condition was obstructive pulmonary disease.  However, when evaluated by VA medical providers for compensation, asthma was listed as one of the diagnosis.  Evaluation of all health related factors were not taken into consideration when my ‘fit-for-duty’ medical board was conducted. Other conditions rated by VA but not by DoD were Hypertension and Acid Reflux.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to conditions determined by the PEB to be unfitting for continued military service and conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting obstructive lung disease condition is addressed below.

The Board acknowledges the CI’s implied contention for ratings of his obstructive sleep apnea condition which was determined to be unfitting by the PEB and the restrictive lung disease condition which was determined to be not unfitting by the PEB and emphasizes that disability compensation may only be offered for those conditions that cut short the member’s military career.  The asthma, hypertension and acid reflux conditions were not identified by the PEB and thus are not within the DoDI 6040.44 defined purview of the Board.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records. 

RATING COMPARISON:  

Service IPEB – Dated 20040416	VA - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Obstructive Lung Disease…	6847-6604	10%	Sleep Apnea with Obstructive Pulmonary Disease	6847	50%	20041112	
Obstructive Sleep Apnea	Unfitting	Not rated					
Restrictive Lung Disease	Not Unfitting	No VA Corresponding Entry	
Other x 0 (Not in Scope)	Other x 2	20041117	
Rating:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20050131. 

ANALYSIS SUMMARY:  The Board noted that the CI was found unfit by the PEB for chronic obstructive lung disease and obstructive sleep apnea (OSA).  The PEB rated a single unfitting condition of chronic obstructive lung disease at 10%, coded with a combined code of 6847-6604 (chronic obstructive pulmonary disease [COPD] with OSA).  The PEB noted the OSA diagnosis and indicated that it could not be separately rated due to pyramiding considerations.  The PEB also adjudicated restrictive lung disease as not unfitting.  According to VASRD §4.96 (special provisions regarding evaluation of respiratory conditions) co-existing respiratory conditions will not be combined and “a single rating will be assigned under the diagnostic code which reflects the predominate disability with elevation to the next higher level where the severity of the overall disability warrants such elevation.”  Therefore, the Board agreed to discuss the two unfitting and one not unfitting respiratory conditions together before deliberating the approach to coding and rating of the CI’s respiratory disability.

Obstructive Sleep Apnea (OSA).  The narrative summary (NARSUM) dated 15 March 2004 notes the CI reported sleep problems of insomnia, snoring, apneic episodes (periods of breathing cessation) and shortness of breath (SOB) at night.  Chest X-rays were reportedly normal.  Notes in the service treatment record (STR) also indicated the CI was treated for hypertension (often caused/exacerbated by OSA).  The CI was diagnosed with OSA by polysomnography conducted on 29 December 2003.  Continuous positive airway pressure (CPAP) treatment was initiated with significant improvement.  A nuclear stress test and an echocardiogram were performed on 22 January 2003 to evaluate symptoms of chest pain and poor exercise tolerance and indicated normal cardiac function.  At the MEB examination on 15 March 2004 (approximately 4 months prior to separation), the CI reported sleep problems were improved with CPAP treatment.   The MEB examination of the lungs and heart was normal.  The permanent profile listed “obstructive lung disease.”  The commander’s statement indicated that the CI’s required use of a CPAP device for his “obstructive lung disease” and his “numerous health problems” made him unfit for duty.

At the VA Compensation and Pension (C&P) respiratory examination, 4 months after separation, the CI reported his OSA.  Respiratory and cardiac examination was normal.  Evaluation of the pharynx noted “pharyngeal crowding” with hypertrophic tonsils.

Chronic Obstructive and Restrictive Lung Disease.  The narrative summary (NARSUM) notes the CI had a history of SOB and chest pain with exertion.  He had no history of asthma or allergies.  Notes in the STR indicated the CI reported episodes of chest pain increased by activity, especially running and relieved by rest.  As noted above he underwent cardiac evaluation, which noted normal cardiac function.  The exercise stress test was terminated due to difficulty breathing and leg fatigue.  Pulmonary function tests (PFT) were performed on 3 November 2003, before and after bronchodilator medication.  The pre-medication forced vital capacity (FVC) was mildly low at 75% of predicted normal FVC (PRED).  Forced expiratory volume at one second (FEV1) was also 75% PRED.  The FEV1/FVC ratio was 79% PRED.  There was no improvement post-bronchodilator.  The interpretation concluded there was no obstructive lung defect evident but noted that a restrictive lung defect could not be excluded based on spirometry alone and more detailed PFT may be indicated.  The CI was referred for a pulmonary consult, and had a PFT on 2 December 2003, with and without bronchodilator.  The pre-medication FVC was 82% PRED and FEV1 was 80% PRED.  The FEV1/FVC ratio was 75% PRED.  There was no improvement with bronchodilator.  The interpretation concluded there was a minimal obstructive lung defect with no response to bronchodilator.  A medication profile in the record dated 25 February 2004 did not include any medications for asthma or chronic obstructive lung disease.

At the MEB examination on 26 March 2004, the CI reported persistent chest wall pain aggravated by running.  The MEB examination noted the CI had an elevated body mass index (BMI).  Lung exam noted decreased breath sounds with good respiratory excursions, without wheezing or fluid in the lungs.  Cardiac exam was normal.

At the VA respiratory C&P examination 4 months post-separation, the CI reported he got SOB climbing one to two flights of stairs or walking briskly for a mile.  He denied asthma attacks, wheezing, or chronic cough.  He reported no history of smoking and was not on any medications for pulmonary disease.  Lung examination was normal.  The examiner concluded there were no underlying restrictive lung disease and noting the impact of the CI’s obesity.  PFT showed a pre-medication FVC of 72% PRED and FEV1 of 68% PRED; FEV1/FVC 74% PRED with an equivocal response to bronchodilator.  The examiner noted obstructive pulmonary disease with a “…reactive component, likely reactive airway disease.”

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudication of the CI’s respiratory conditions is noted above.  The VA rated OSA with obstructive pulmonary disease at 50%, coded as 6847 (sleep apnea syndromes).  The Board considered that the evidence in record supports that the CI was diagnosed with OSA.  In addition he reported SOB and chest discomfort while active.  He was evaluated and found to have normal cardiac function and chest X-rays were normal.  PFT indicated minimal obstructive defects not meeting diagnostic criteria for asthma and minimal decreased lung capacity, most consistent with restricted lung expansion due to obesity.  The CI was not diagnosed with a specific obstructive or restrictive lung disease by the PEB and was he was not treated with medications for asthma or reactive airways disease prior to separation.  The post-separation VA C&P examination noted a possible diagnosis of reactive airway disease.  The CI was diagnosed with OSA while on active duty status and required use of a CPAP device to manage his symptoms, which was linked to the determination that he was unfit for continued military service.  Therefore, the Board agreed that the CI’s predominate respiratory disability was due to the OSA condition and IAW §4.96 the single respiratory condition rating is best coded with a combination code of 6604-6847 (OSA with chronic obstructive lung disease)

According to code 6847 rating criteria, the disability due to the OSA/chronic obstructive lung disease condition meets the 50% rating specified as “requires use of breathing assistance device such as CPAP machine, but does not meet the next higher evaluation of 100% which requires evidence of respiratory failure, cardiac effects, or tracheostomy.”  The Board considered if this single rating should be elevated to the next higher evaluation of 100% due to the additional non-specific respiratory diagnoses of minimal obstructive and/or restrictive lung disease and agreed that it was not warranted in this case.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the OSA with obstructive lung disease condition.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic obstructive lung disease and OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6604-6847 IAW VASRD §4.97.  There were no other conditions within the Board’s scope of review for consideration.

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	
Chronic Obstructive Lung Disease and OSA	6604-6847	50%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130911, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20140020632 (PD201301360)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% effective the date of the individual’s original medical separation for disability with severance pay.  

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

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 50% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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						
						
CF: 
(  ) DoD PDBR
(  ) DVA