RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01344
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060111

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E6, Infantryman, medically separated for “sleep apnea requiring C-PAP” rated 0%, with a disability rating of 0%.  

CI CONTENTION:  The CI contends his sleep apnea should have been rated 50% and his not unfitting left shoulder rated 20%.  The applicant’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 conditions 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 Veterans Affairs Schedule for Rating Disabilities (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:

SERVICE PEB - 20051222	VARD - 20060922	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sleep Apnea requiring C-PAP…	6847	0%	Sleep Apnea	6847	NSC*	20060629	
Left Shoulder…	Not Unfitting	Left Shoulder…Tear	5299-5201	20%	20060629	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	
*Rating increased to 50% via Decision Review Officer Decision 20081211 effective 20060112

ANALYSIS SUMMARY:

Sleep Apnea Requiring C-PAP.  A sleep study was performed in May 2005 (8 months prior to separation) to evaluate complaints of snoring, witnessed episodes of apnea (breathing cessation) during sleep, and daytime sleepiness.  This sleep study confirmed the diagnosis of obstructive sleep apnea (OSA), and nightly CPAP [continuous positive airway pressure] was prescribed.  Despite conservative treatment, the OSA condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty, so he was referred for a Medical Evaluation Board (MEB).  The OSA was permanently profiled (P3).  

The MEB forwarded “sleep apnea requiring CPAP therapy” for PEB adjudication along with a second condition characterized as not unfitting, “left shoulder with postsurgical repair…”  At the NARSUM examination on 12 October 2005 (3 months before separation) the examiner diagnosed “unfitting…sleep apnea requiring CPAP.”  The VA Compensation and Pension (C&P) evaluation performed in June 2006 (6 months post-separation) acknowledged the CI’s May 2005 sleep apnea diagnosis with use of CPAP.  The examination noted no cardiovascular or pulmonary abnormalities.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating coded 6847 (sleep apnea) with application of Department of Defense Instruction 1332.39, E2.A1.2.20, which differed from VASRD rating criteria.  The PEB stated “the condition existed prior to mobilization based on history of loud snoring for many years, and was not permanently service aggravated but is ratable IAW 10 USC, 107a (8 year rule).”  The VA also coded the sleep apnea condition 6847 but determined the condition was not service connected (NSC), citing lack of objective evidence the OSA condition was aggravated by service.  The CI appealed the VA rating decision, and in December 2008 (3 years after separation) a VA Decision Review Officer granted a 50% rating (coded 6847) effective the day after separation.

The OSA condition was documented in the STR, the CI was placed on a permanent profile for OSA (which included the requirement for CPAP and a reliable source of electricity), and CPAP was identified by the NARSUM examiner as a required treatment.  VASRD §4.97 provides for a minimum rating of 50% for OSA requiring a breathing assistance device, and the evidence establishes that the 50% criterion was met in this case.  There was no evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or requirement for a tracheostomy to support a 100% rating.  In consideration of these facts, the Board unanimously recommends a disability rating of 50% for the OSA condition, coded 6847.

Contended PEB Conditions.  The CI underwent surgery for repair of a labral tear in June 2005.  The MEB orthopedic addendum dictated 21 October 2005, noted decreased shoulder range of motion (ROM), with pain, and indicated that the CI had developed biceps tendinitis as a result of aggressive post-operative therapy.  The orthopedic surgeon indicated that the tendinitis was not disqualifying and the CI should continue in therapy.  Following additional therapy, an orthopedic follow-up on 5 January 2006 noted that the CI regained functional shoulder ROM and the CI reported a residual a pain level graded 2-3/10, which the CI considered a good result.  The examiner indicated the CI was released from orthopedic care and was fit to demobilize or deploy for the orthopedic component.

The left shoulder was not permanently profiled or implicated in the commander’s statement and was found fit for duty following rehabilitation after surgery by the orthopedic MEB examiner.  The left shoulder condition was reviewed and considered by the Board.  There was no performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded there was insufficient cause to recommend a change in the PEB fitness determination for the left shoulder condition, so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the sleep apnea condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  In the matter of the contended left shoulder condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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	PERMANENT RATING	
Sleep Apnea Requiring C-PAP	6847	50%	
RATING	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140302, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160006742 (PD201401344)

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 dat~ 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:

CF:
( ) DoD PDBR
( ) DVA