RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02996
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050521

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Military Police) medically separated for sleep apnea.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “sleep apnea” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “sleep apnea” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.  

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 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 20050329	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sleep Apnea	6847	0%	Obstructive Sleep Apnea	6847	50%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 15 	
RATING:  0%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20051110 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Sleep Apnea.  Treatment records evidence that the CI presented in 2002 with reports of day time sleepiness and a hard time waking up.  A polysomnogram performed 17 May 2004 demonstrated that the CI had mild obstructive sleep apnea (OSA) which worsened during REM sleep.  The CI was placed on continuous positive airway pressure (CPAP) therapy with excellent response.  The narrative summary noted that the CI continued to have symptoms of OSA which improved with CPAP.  The respiratory and oropharyngeal examinations were normal.  The CI did not show for his scheduled VA Compensation and Pension examinations on 28 September and 19 May 2008.   

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA condition at 0% with cited application of DODI 1332.39, coded 6847 (Sleep Apnea Syndromes). VA rated the condition at 50%, also coded 6847.  The Board noted that DODI 1332.39 which was in effect at separation was subsequently rescinded.  IAW DoDI 6040.44, the VASRD in effect at the time the CI’s disability rating was assigned will be used for recommendations, along with all applicable statutes, and any directives in effect at the time of the contested separation (to the extent they do not conflict with the VASRD in effect at the time of the contested separation).  VASRD §4.100 mandates a minimum rating of 50% for OSA requiring a breathing assistance device.  The evidence supports that this criterion was met; however, it does not support a 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.  

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 this Board.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Sleep Apnea 	6847	50%	
RATING	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140507, 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 XXXXXXXXXX, AR20160003769 (PD201402996)

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 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