RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01943
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150513
SEPARATION DATE:  20051111

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Guard Reserve (AGR) E-7 (Unit Supply Specialist) medically separated for diabetes mellitus (DM) and obstructive sleep apnea (OSA).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3/L2 profile and referred for a Medical Evaluation Board (MEB).  The “diabetes mellitus” and “obstructive sleep apnea” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated DM and OSA as unfitting, rated 10% and 0%, respectively, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI contends a higher service rating for obstructive sleep apnea.  His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any condition outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20050707	VA* - (~10 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Diabetes Mellitus	7913	10%	DM Type 2 with Chronic Renal Insufficiency	7913	20%	20060912	
Obstructive Sleep Apnea	6847	0%	Sleep Apnea	6847	50%	20060912	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20061017 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Diabetes Mellitus.  The CI was diagnosed with DM in 2003 although these records are not in evidence.  He was managed with life style changes (diet, exercise, and weight loss) and, intermittently with medications.  From the record, it appears that the MEB was initiated for the OSA condition (discussed below).  The narrative summary (NARSUM) was dated 20 May 2005.  The CI reported occasional polyuria (frequent urination), polydipsia (excessive thirst), and polyphagia (excessive hunger).  These are all symptoms of DM; he denied recent blurred vision (seen in excessively high blood sugars).  On examination, the 70 inch CI was noted to be obese and to weigh 240 pounds (up over 80 pounds from accession).  Sensation was normal and his blood sugar was 145 on testing.  Renal function tests were normal for his size.  A blood marker for chronic control of his DM, an HA1C (blood sugar test), was less than seven, indicating good control off of medications.  No evidence of end organ damage was present and there was no regulation of activities.  The PEB was dated 7 July 2005 and noted that the CI was controlled with a restricted diet, implying that he was not on medications.  The CI concurred with this adjudication on 19 July 2005.  However, the last clinical note in the record (for sleep apnea) was dated 29 November 2005 and noted that the CI had been put on an oral hypoglycemic agent, previously filled on 25 October 2005, 2 weeks prior to separation.  It also noted that the CI was non-compliant with his diet.

At the VA Compensation and Pension (C&P) examination performed 12 September 2006, 10 months after separation, the CI reported no problems with his DM and no hospitalizations.  It noted that his weight was 259, up 19 pounds from the NARSUM examination.  The action officer noted that this increase would complicate control of the DM condition and may have led to the re-initiation of treatment.  He was obese, but without evidence of a neuropathy.  One test for renal function was elevated and attributed to the hypertension and DM conditions; this previously had been attributed to his size (creatinine level varies with both renal function and muscle mass).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both used the code 7913 (diabetes mellitus), but rated the condition at 10% and 20%, respectively.  The difference in the two ratings is that the former is supported by a diagnosis of DM controlled by a restricted diet and the latter is for the use of medications.  Review of the records showed that the CI was on medications at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the DM condition.

Obstructive Sleep Apnea.  The record shows that the CI was seen in primary care on 31 August 2004 for a thumb cyst and complained of possible sleep apnea.  He was referred to a sleep clinic and found to have severe sleep apnea on overnight testing.  He began BiPAP (bi-level positive airway pressure) with excellent control.  The NARSUM documented that his prior symptoms of poor energy, daytime sleepiness, and early morning headaches had resolved.  At the VA C&P examination, the CI reported continued use of the VPAP (a type of BiPAP) with good control of his symptoms.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the condition 6847 (sleep apnea), but rated it at 0% and 50%, respectively.  The use of BiPAP supports a 50% rating under the VASRD.  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 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 DM condition, the Board unanimously recommends a disability rating of 20%, coded 7913 IAW VASRD §4.120.  In the matter of the OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.100.  
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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Obstructive Sleep Apnea	6847	50%	
Diabetes Mellitus	7913	20%	
RATING	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131025, 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 XXXXXXXXXXXXXXXXXXXX, AR20150012493 (PD201301943)

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 60% 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 60% 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