RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04097
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041022

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E7, Public Affairs Broadcast Specialist, medically separated for sleep apnea, with a disability rating of 0%.  

CI CONTENTION:  “My mental health, sleep apnea and other issues incurred during my service should be reexamined in light of updated information.”  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 based upon a 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 - 20040817	VARD - 20050817	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sleep Apnea	6847	0%	Sleep Apnea	6847	50%	20050629	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Sleep Apnea.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s sleep apnea was evaluated with a sleep study (polysomnogram) in September 1998, confirming the diagnosis of moderate obstructive sleep apnea (OSA).  Continuous positive airway pressure (CPAP) was prescribed.  Despite treatment, the OSA condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a Medical Evaluation Board (MEB).  The MEB forwarded “sleep apnea” for PEB adjudication.  

At the time of the otolaryngology (ear, nose and throat specialist) clinic appointment in January 2004, the CI reported daytime sleepiness and being less tolerant of his CPAP machine.  A second sleep study was done in January 2004 to adjust the CPAP pressure.  

During the MEB NARSUM examination dated 9 July 2004, 3 months prior to separation, the CI’s symptoms of OSA were controlled by the use of the CPAP machine nightly.  A permanent profile dated 5 May 2004 specified that the service member used CPAP nightly.  At the 29 June 2005 VA Compensation and Pension (C&P) evaluation, performed 8 months after separation, the CI reported improvement of his OSA symptoms with nightly CPAP use.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA condition 0%, coded 6847 (sleep apnea syndromes), with application of DoDI 1332.39 rating guidance, which differed from VASRD rating criteria, and cited mild industrial impairment.  The VA rated the OSA condition at 50%, also coded 6847, citing the CPAP requirement.  The Board considered the evidence for a higher rating than the PEB’s 0% rating.  The OSA condition was documented in the STR, a permanent profile for OSA was issued, and CPAP was identified by the NARSUM examiner as a required treatment.  The VASRD §4.97 provides for a minimum rating of 50% for OSA requiring a breathing assistance device, and the evidence establishes that this 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.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a service disability rating of 50% for the OSA condition, coded 6847.  

BOARD FINDINGS:  In the matter of the sleep apnea condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.100.  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	
Sleep Apnea	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated, w/attachments
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 AR20160013329 (PD201404097)

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