RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01483
BRANCH OF SERVICE:  Army	BOARD DATE:  20141031
SEPARATION DATE:  20040415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13F/Fire Support Specialist) medically separated for obstructive sleep apnea (OSA).  The OSA condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  OSA was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions.  The Informal PEB adjudicated OSA as unfitting, rated 0%.  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI appealed to the Formal PEB (FPEB) but later withdrew his FPEB request and was medically separated.

CI CONTENTION:  The CI simply stated “Sleep Apnea.”

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 those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting OSA condition is addressed below; 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 20040223	VA - (1 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea	6847	0%	Obstructive Sleep Apnea	6847	50%	20040517	
Other x 2 (Not in Scope)	Other x 11		
Rating:  0%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20040823 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  

Obstructive Sleep Apnea.  The CI was diagnosed with OSA in September 2002.  Routine chest X-ray at that time was normal.  A sleep study at that time revealed severe OSA with resolution of a breathing assistance device (continuous positive airway pressure [CPAP]).  The CI’s weight at that time was 246 pounds.  The CI was treated with home CPAP.  A follow-up sleep study in June 2003 was unchanged with continued resolution with CPAP.  The CI had continued daytime hyper-somnolence, despite use of CPAP.  An ear, nose and throat evaluation performed on 13 February 2003 recommended a surgical procedure for correction of the OSA condition.  This was declined by the CI.  At the MEB 1 October 2003 narrative summary exam, the examiner reported the CI to be compliant with CPAP use for the prior year.  Chest and lung examinations were normal.  Weight at this time was 264 pounds.  At the VA Compensation and Pension respiratory exam performed a month prior to separation; the CI reported continued use of CPAP.  Chest and lung exams were normal.  Pulmonary function tests were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA chose the same coding option for the condition, but with different disability ratings.  OSA was evaluated under diagnostic code 6847.  Under the criteria for this code, a noncompensable rating is warranted for asymptomatic, but documented sleep disorder breathing.  A 30% disability rating is warranted for persistent day-time hyper-somnolence.  A 50% disability rating is warranted when the disability requires the use of a breathing assistance device such as a CPAP machine.  Ratings higher than 50% require the presence of chronic respiratory failure with carbon dioxide retention or cor pulmonale or the requirement for tracheostomy which were not present in this case.  The PEB assigned a 0% rating citing DoD guidelines (presumed to be DODI 1332.39 (E2.A1.2.21), and made note that the CI’s weight gain and obesity, a non-ratable/non-compensable condition and denial of surgery were significant factors in their decision.  The VA rated the condition at 50%, citing use of the CPAP machine. 

 The Board unanimously agreed that the evidence in record was clear and compelling that the CI had a confirmed diagnosis of OSA, that CPAP use was required and that the CI was using CPAP at time of separation.  The Board also noted that the CI opted to not have definitive surgery, recommended as an alternative to CPAP use, but this was not considered in the discussions of the Board and had no impact on Board decision making as this was the patient’s right.  The Board found no evidence of ‘willful noncompliance’ in the record.  The Board unanimously agreed that the standard for 50% rating, but no higher under code 6847, was met.  The Board found no other appropriate codes for rating consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a separation rating of 50% for the OSA 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 OSA condition, the Board unanimously recommends a disability rating of 50%, coded 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	
Obstructive Sleep Apnea	6847	50%	
RATING	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130919, 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 XXXXXXXXXXXXXXX, AR20150004309 (PD201301483)

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 from the date of this memorandum:

	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