RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD -2014-02532
BRANCH OF SERVICE:  Army	Separation Date:  20041231

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Heavy Construction Equipment Operator, medically separated for sleep apnea.  The condition 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/L3 profile and referred for a Medical Evaluation Board (MEB).  The “obstructive sleep apnea (OSA)” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (left Achilles tendonitis, bilateral pes planus and plantar fasciitis, bilateral knee pain, and left finger deformity) for PEB adjudication.  The Informal PEB adjudicated “OSA, requiring C-PAP, rated as mild” as unfitting, rated 0%.  

CI CONTENTION:  “Please consider all conditions”

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 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/Naval 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.  
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RATING COMPARISON:  

IPEB – Dated 20041012	VA* - (~1 Month Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
OSA, Requiring C-PAP…	6847	0%	OSA	6847	50%	20050209	
Chronic Left Achilles Tendonitis	Not Unfitting	Left Achilles Tendonitis	5024	10%	20050209	
Bilateral Pes Planus and Plantar Fasciitis	Not Unfitting	Right Plantar Fasciitis…	5276-5284	10%	20050209	
		Left Plantar Fasciitis…	5276-5284	10%	20050209	
Bilateral Knee Pain…	Not Unfitting	Right Patellofemoral Syndrome…	5261	10%	20050209	
		Left Patellofemoral Syndrome…	5261	10%	20050209	
Left Fifth Finger Mallet Deformity	Not Unfitting	Left Little Finger Mallet Deformity	5230	0%	20050209	
Other x 0 (Not In Scope)	Other x 2	
RATING:  0%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20050616 (most proximate to date of separation (DOS)).  
ANALYSIS SUMMARY:  

OSA Condition.  The CI developed symptoms of loud snoring and hypersomnolence while deployed in 2001.  Upon returning to CONUS, the CI’s symptoms continued and he was referred for a sleep study at a civilian hospital in October 2002.  The sleep study demonstrated infrequent obstructive episodes of no breathing/episodes of shallow breathing and mild to moderate snoring.  The examiner recommended a CPAP machine (breathing assistance device - continuous positive airway pressure).  The CI underwent two more Sleep Studies, the first in November 2002 for a CPAP titration and the second in February 2003 for a CPAP re-titration.  In February 2004, the CI reported feeling tired throughout the day, despite the use of his CPAP machine.  The ENT in April 2004 indicated that because the CI was tolerating his CPAP machine so well, that he would not benefit from uvula surgery (to open the airway).  

The MEB Narrative Summary (NARSUM) exam approximately 5 months prior to separation documented that the CI’s hypersomnolence had resolved and that the CI was doing very well on his CPAP machine.  The examiner opined that the CI’s OSA condition necessitated the use of a CPAP machine.  The Behavioral Health MEB Addendum approximately 3 months prior to separation documented that the CI was moody, depressed, irritable and had hypersomnolence.  The CI reported that although he did not fall asleep in the daytime, he still felt tired.  He further reported one instance of sleepiness while driving a short distance in the mid-afternoon and he needed a one hour nap, then he was able to resume his trip.  The Psychiatrist diagnosed OSA manifested by snoring, daytime fatigue, poor concentration and moodiness.  There was a moderate impairment for further military duty and a definite impairment for social adaptability.  The VA Compensation and Pension (C&P) exam approximately a month prior to separation documented that the CI obtained some, but not complete, relief from his OSA symptoms and improvement in the hypersomnolence with the use of his CPAP machine.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the OSA Requiring a CPAP Machine condition as 6847 (Sleep Apnea Syndromes [Obstructive, Central, Mixed]) and rated at 10%.  The VA coded the OSA condition as 6847 and rated at 50%.  The CI was diagnosed with OSA and required and used a CPAP machine.  VASRD §4.97 mandates a minimum rating of 50% under code 6847 for OSA requiring a breathing assistance device.  In consideration of this evidence, and IAW DODI 6040.44, the Board recommends a separation rating of 50% for the OSA condition.  There was no evidence of chronic respiratory failure, cor pulmonale, or a tracheostomy for any higher rating.  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 IAW §4.100.  

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were chronic left Achilles tendonitis, bilateral pes planus and plantar fasciitis, bilateral knee pain and left fifth finger mallet deformity.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is preponderance of the evidence but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

The chronic left Achilles tendonitis, bilateral pes planus and plantar fasciitis, bilateral knee pain conditions were given an L3 profile; with restrictions on unlimited running, walking, biking and swimming.  An alternate fitness test was permitted and the CI passed the alternate AFPT (walk) in April 2004.  The left fifth finger mallet deformity condition was not profiled.  The NARSUM examiner indicated that none of the contended conditions produced significant disability and that they all met retention standards.  The Commander’s Statement focused solely on the OSA condition, none of the contended conditions were discussed as interfering with the CI’s duty.  The MEB indicated that the contended lower extremity conditions did not meet standards “IAW AR 40-501, 3-41c.,” which is the paragraph for “sleep apnea” and not for extremity or musculoskeletal conditions.  The MEB indicated that the left finger condition met standards.  

All contended conditions were reviewed and considered by the Board.  There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions; and, therefore, no additional disability ratings can be recommended.  

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.  As discussed above, PEB reliance on DoDI 1332.39 for rating the OSA condition was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.100.  In the matter of the chronic left Achilles tendonitis, bilateral pes planus and plantar fasciitis, bilateral knee pain and left fifth finger mallet deformity contended conditions; the Board unanimously recommends no change from the PEB determinations as not unfitting.  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, Requiring C-PAP …	6847	50%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140428 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXX, AR20160005116  (PD201402532)

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 re­ characterize 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 accord·1ngly 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
 ( ) OVA