RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02237
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Health Care Specialist, medically separated for "obstructive sleep apnea” with a disability rating of 10%.

CI CONTENTION:  The CI contends that the ratings for obstructive sleep apnea with need of C-PAP machine, allergic rhinitis, bilateral pes planus, chronic thoracolumbar strain, hemorrhoids, and bilateral retropatellar pain syndrome need to be changed, but provides no reason for the change.  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 - 20020422	VARD - 20020705	
Condition	Code	Rating	Condition	Code	Rating	Exam	
OSA, Controlled with CPAP	6847	0%	OSA with Need of C-PAP Machine…	6847	50%	20020508	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Obstructive Sleep Apnea.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), A sleep study was performed in June 2001 to evaluate complaints of snoring, periods of not breathing as witnessed by his spouse, daytime fatigue, and sleepiness (to include falling asleep at stoplights).  The study confirmed the diagnosis of severe OSA, and nightly CPAP (continuous positive airway pressure) was prescribed.  His treatment regime included surgical removal of his tonsils and uvula in August 2001.  Despite aggressive treatment parameters, his OSA did not result in improvement sufficiently to allow unrestricted duty.  
At the 20 March 2002 NARSUM, 3 months prior to separation, the CI reported he was doing much better on the CPAP; much less sleepy and able to function without drowsiness during the day and sleep better at night.  The OSA condition was permanently profiled.  The VA Compensation and Pension (C&P) evaluation on 8 May 2002, 1 month before separation, noted the use and requirement of a CPAP machine.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA 0%, coded 6847 (sleep apnea syndromes), citing that the condition  was controlled with CPAP and rated as mild industrial impairment IAW DoDI 1332.39, paragraph E2.A1.2.2.1.  The VA rated the OSA 50%, coded 6847, citing the requirement for CPAP.  The PEB clearly stated that OSA was unfitting, premised its fitness determination on CPAP requirements, and rated the OSA IAW DoD rating criteria in effect at the time.  However IAW DoDI 6040.44, the panel’s recommendation must be derived from the VASRD.  VASRD §4.97 mandates 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.  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 OSA, coded 6847.

BOARD FINDINGS:  In the matter of the OSA, the panel unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  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 20150819, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015102, 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