RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01379
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060517

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Motor Transport Operator, medically separated for “upper airway resistance syndrome,” disability rating of 0%.  

CI CONTENTION:  The CI contends he was given a higher rating for his condition by the VA.  The CI’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 - 20060427	VARD - YYYYMMDD	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Upper Airway Resistance Syndrome	6899-6847	0%	Obstructive Sleep Apnea (OSA)	6847	50%	20060815	
Other MEB/PEB Conditions x 0	Other x 3	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:  

Upper Airway Resistance Syndrome.  According to the service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM) the CI first reported ongoing daytime somnolence and non-restorative sleep in 2004.  A sleep study in November 2005 detected sleep disordered breathing consistent with upper airway resistance syndrome (a sleep apnea syndrome), and a CPAP [continuous positive airway pressure] titration study in February 2006 documented the effectiveness of CPAP.  

At the MEB NARSUM examination done on 10 March 2006 approximately 2 months before separation, the CI reported nightly use of his CPAP machine.  The physical exam was normal.  The examiner noted that the symptoms of obstructive sleep apnea (OSA) were alleviated by the required nightly use of the CPAP machine.  The OSA condition was permanently profiled.  The VA Compensation and Pension (C&P) evaluation on15 August 2006, approximately 3 months after separation, reported that symptoms of OSA were alleviated by the use of the CPAP machine.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 6847code (sleep apnea syndromes obstructive, central, mixed) citing a mild industrial impairment.  The VA assigned a 50% rating using the 6847 code based on the VA C&P examination 3 months after separation, citing that a CPAP machine was required for control of the OSA.  The OSA condition was documented in the STR, the CI was placed on a permanent profile for OSA, 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 latter 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 recommended a service disability rating of 50% for the OSA condition, coded 6899-6847.

BOARD FINDINGS:  In the matter of the upper airway resistance syndrome condition, the Board unanimously recommends a disability rating of 50%, coded 6899-6847 IAW VASRD §4100.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Upper Airway Resistance Syndrome	6899-6847	50%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140319, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160008289 (PD201401379)

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:

Enclosure
CF:
( ) DoD PDBR
( ) DVA