RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00002
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O-3, Special Forces Officer, medically separated for “obstructive sleep apnea” with a disability rating of 0%.

CI CONTENTION:  PEB did not rate his condition IAW the VASRD.   The applicant’s complete submission, with attachments, 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 - 20051027	VARD - 20060404	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea	6847	0%	Obstructive Sleep Apnea (OSA)	6847	50%	20051215	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Obstructive Sleep Apnea (OSA).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s OSA condition was diagnosed in 1999.  Surgical interventions did not provide sustained benefit, so nightly CPAP (continuous positive airway pressure) was prescribed. The MEB forwarded sleep apnea for PEB adjudication.  At the pulmonary clinic examination, 16 March 2005, the CI reported that his symptoms of OSA were helped by the use of the CPAP machine, but he was a “wreck” if he didn’t use his CPAP, and believed this was incompatible with Special Forces duty.  The MEB NARSUM examination on 14 June 2005, 8 months prior to separation, noted that the symptoms of OSA were helped by the use of the CPAP machine, but he would be immediately symptomatic with sleepiness and impaired daytime function if he was unable to use his CPAP on a nightly basis, and the demands of a Special Forces Officer sometimes made this requirement difficult.  The permanent profile dated 14 September 2005 specified “must have access to 120 volt electrical outlet for CPAP machine while sleeping.

At the VA Compensation and Pension (C&P) examination in December 2005, performed 2 months before separation, the CI reported he was doing well as long as he could use his CPAP consistently.  

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 application of DoDI 1332.39 rating guidance.  The VA rated the OSA condition 50%, also coded 6847 based on the VA C&P examination 2 months before separation, citing requirement of nightly CPAP.  The Board agreed 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/pulmonologist examiner as a required treatment.  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.  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, coded 6847.

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 prior to medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Obstructive Sleep Apnea	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141224, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160018443 (PD201500002)

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