RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03059
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040924

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Guard and Reserve (AGR) Program E-6 (Light Wheeled Vehicle Mechanic) medically separated for obstructive sleep apnea (OSA), rated at 0%. 

CI CONTENTION:  The CI requested that the Board review all of his conditions.  His 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 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:  

IPEB - Dated 20040804	VA* - (~7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea, Requiring CPAP	6847	0%	Obstructive Sleep Apnea with CPAP	6847	50%	20050417	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 11	
RATING:  0%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20050621 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

OSA (requiring CPAP) Condition.  Secondary to heavy snoring and excessive daytime sleepiness, the CI was referred for a sleep study which was performed on 19 September 2002.  The study met criteria for the diagnosis of severe OSA which improved with CPAP titrated at 11 cm of water.  The CI was placed on a permanent profile in June 2004 that required him to have access to electricity for CPAP.  

Based on the evidence just described, the Board directs its attention to its rating recommendations.  The PEB’s DA Form 199 assigned a 0% rating under DODI 1332.39 (E2.A1.2.21), and based the fitness adjudication on field impediments to the use of CPAP.  Contemporary PEBs across all of the services no longer consider OSA to be unfitting solely on this basis, but the Board, by legal opinion and firm precedent, does not make contrary recommendations to a PEB determination that a condition was unfitting.  VASRD §4.97 mandates a minimum rating of 50% under 6847 for OSA requiring a breathing assistance device.  In consideration of this evidence, and IAW DoDI 6040.44, 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 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.  

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 (requiring CPAP) 	6847	50%	
RATING	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140620, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SUBJECT:   Department  of Defense  Physical  Disability  Board of Review  Recommendation
for XXXXXXXXXX,  AR20160002827   (PD201403059)

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