RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01330
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20070409

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Air Transportation Craftsman, medically separated for “obstructive sleep apnea, on CPAP” with a disability rating of 0%.

CI CONTENTION:  The CI requests that all conditions be considered.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20070220	VARD – 20070910	
Condition	Code	Rating	Condition	Code	Rating	Exam	
OSA, on CPAP	6847	0%	Sleep Apnea	6847	50%	20070910	
Obesity, BMI 34.87	Cat III	No VA Placement	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:  

Obstructive Sleep Apnea (OSA).  A sleep study was performed in February 2006 to evaluate complaints of snoring, witnessed episodes of apnea (breathing cessation) during sleep, and daytime sleepiness.  The study confirmed the diagnosis of “extremely severe” OSA, and nightly CPAP (continuous positive airway pressure) treatment was begun in May 2006.  The Medical Evaluation Board (MEB) narrative summary (NARSUM) examination on 18 June 2006, 10 months prior to separation, noted that the symptoms of OSA were significantly improved by the use of the CPAP machine, which he reportedly tolerated well.  Although in a memorandum dated 19 June 2006 the CI requested separation from the Air Force due to his OSA diagnosis, an Informal PEB (IPEB) in August 2006 found the CI to be fit for duty.
At a pulmonology evaluation on 11 January 2007, (3 months prior to separation) the CI reported persistent excessive daytime sleepiness and not getting restful sleep due to an inability to wear the CPAP device.  Despite several trials with different devices, he continued to report “claustrophobia, mask bothering him and unknown reasons” as causes of finding his mask on the floor when he awoke.  A repeat sleep study confirmed the diagnosis of severe OSA.  During the study the CI was witnessed to awaken twice then remove the device from his face.  The examiner concluded that the CI should be separated for treatment non-compliance.  A VA Compensation and Pension (C&P) evaluation was not performed proximal to separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA condition 0%, coded 6847, and implicated noncompliance with treatment in the decision.  The VA rated the OSA condition 50% (also coded 6847) based on the service treatment record (STR), citing the prescription of 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 and pulmonary examiner as a required treatment.  However, 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 panel recommends a disability rating of 50% for the obstructive sleep apnea, coded 6847.

Contended PEB Conditions:  Obesity.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  Obesity is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the panel has no basis for recommending it as unfitting.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the obstructive sleep apnea, the panel unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  In the matter of the contended obesity, the panel unanimously or majority agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the panel’s scope of review for consideration.  

The panel 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 20150609, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-01330.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at XXXXXXXXXXXXXXXXXXX to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

Attachment:
Record of Proceedings