RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04183
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050330

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for “mixed obstructive and central sleep apnea,” rated at 0%.  

CI CONTENTION:  The applicant contends that his knees and back conditions continue to worsen and negatively impact his daily activities.  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 20041222	VA* - (~2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mixed Obstructive and Central Sleep Apnea	6847	0%	Sleep Apnea	6847	50%	20050211	
Recurrent Low Back Pain	Not Unfitting 	Thoracolumbosacral Degenerative Disc Disease	5237-5243	10%	20050211	
Recurrent Knee Pain	Not Unfitting	Right Knee Retropatellar Pain Syndrome	5299-5014	10%	20050211	
		Left Knee Retropatellar Pain Syndrome	5299-5014	10%	20050211	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 4	
RATING:  0%	COMBINED RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20050809 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Mixed Obstructive and Central Sleep Apnea.  A sleep study was performed in July 2004 (8 months prior to separation) to evaluate complaints of snoring, witnessed episodes of apnea (breathing cessation) during sleep, daytime apneas, daytime sleepiness, fatigue, and headaches.  The study confirmed the diagnosis of moderate obstructive sleep apnea (OSA), and nightly CPAP (continuous positive airway pressure) was prescribed.  However, the CI was having difficulties using the CPAP secondary to his nasal septal deformity and turbinate hypertrophy.  He underwent turbinate reduction as well as septoplasty (nasal surgery), which facilitated the use of CPAP.  The permanent profile dated 7 December 2004 specified that he must have access to electricity and distilled water for use of CPAP during sleep.  At the MEB consult examination on 1 November 2004, the CI reported that his symptoms of OSA were now fully resolved with the use of the CPAP machine.  At the VA Compensation and Pension (C&P) exam performed 2 months before separation, the CI reported OSA with use of CPAP.  

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) citing near resolution of symptoms using required CPAP—this was likely application of DoDI 1332.39 rating guidance which differed from the VASRD criteria.  The VA rated the OSA condition 50% (coded 6847) citing requirement of a breathing assistance device, such as a CPAP machine.  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 and cited by the PEB.  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 recommends a disability rating of 50% for the OSA condition, coded 6847.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that his low back and bilateral knee conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The back and knee conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence 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 so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the obstructive sleep apnea 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	
Mixed Obstructive and Central Sleep Apnea	6847	50%	
RATING	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140427, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160005512, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 50% effective the date of your medical separation for disability with severance pay. Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances. These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits. Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted. Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

 
Enclosure