RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00052
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Human Resources Specialist, medically separated for “obstructive sleep apnea” with a disability rating of 0%.

CI CONTENTION:  The rating for obstructive sleep apnea should be changed.  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 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:

SERVICE PEB - 20071005	VARD - 20090203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea	6847	0%	Obstructive Sleep Apnea	6847	50%	20081028	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Obstructive Sleep Apnea (OSA).  A sleep study was performed in August 2006 to evaluate complaints of heroic snoring, witnessed apneas, excessive daytime sleepiness, waking up multiple times at night, feeling un-refreshed in the morning after sleeping, and severe headaches.  The study confirmed the diagnosis of severe OSA, and nightly CPAP (continuous positive airway pressure) was prescribed.  The Medical Evaluation Board (MEB) forwarded “obstructive sleep apnea” for PEB adjudication.  At the sleep clinic examination, 23 March 2007, 10 months prior to separation, the examiner noted poor compliance with CPAP use.  The MEB NARSUM examination on 8 June 2007, 8 months prior to separation, noted that the CI had not been able “to consistently use CPAP on a continuous basis due to side effects such as mask and pressure intolerability and to some extent claustrophobia.”  The examiner indicated that the CI’s physical and psychological functional status was impaired due to his inability to tolerate CPAP and that he would also continue to have daytime sleepiness.  The permanent profile dated 16 August 2007 specified that the CI was “CPAP dependent and requires use of CPAP machine during sleep.”  On 6 September 2007, the CI’s commander stated that the CI remained “unable to fully rest at night and continues to suffer from fatigue, headaches, and dizziness throughout the day.”  The VA Compensation and Pension (C&P) evaluation on 28 October 2008, 9 months after separation, reported OSA symptoms improved, but the CI used the CPAP machine on a regular basis.

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 likely application of DoDI 1332.39 rating guidance.  The VA rated the OSA condition 50%, also coded 6847 based on the VA C&P examination 9 months after separation, citing the requirement for breathing assistance device, such as a 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 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 supports this criterion.  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 the facts and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously 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 of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Obstructive Sleep Apnea	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150121, 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, AR20160018808 (PD201500052)

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