RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02351
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20071119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty “Vehicle and Vehicular Equipment Maintenance Journeyman”, medically separated for “obstructive sleep apnea, not controlled with CPAP” with a disability rating of 0%.

CI CONTENTION:  “Doctor’s statement saying I did not attend appointments was used to determine the result and not the actual medical condition.”  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 - 20070910	VARD - 20080521	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea, Not Controlled with CPAP	6847	0%	Sleep Apnea	6847	NSC	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Obstructive Sleep Apnea, Not Controlled with CPAP.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), a sleep study was performed in May 2006 to evaluate complaints of snoring, apneas (brief breathing cessations during sleep witnessed by spouse, daytime fatigue, and sleepiness.  Additionally, the CI was restricted from driving, due to his sleepiness.  The sleep study confirmed the diagnosis of obstructive sleep apnea (OSA).  Surgical options were discussed but the CI refused surgery and nightly CPAP (continuous positive airway pressure) was prescribed.  The CI reported improvement in his symptoms when compliant with CPAP treatment.  At the 7 September 2006 sleep specialist follow-up, 10 months before separation, on the CI reported that his compliance with CPAP use at home was excellent, but that he lived a long distance from the base and at times needed to stay with friends near the base and then was unable to use the CPAP.  The sleep specialist noted the Epworth Sleepiness Score had improved from 21 /24 to 13/24, which meant that the CI was still “slightly excessively sleepy.”  

The 22 May 2007 MEB NARSUM examination, 6 months prior to separation, noted that the symptoms of OSA were helped by the use of the CPAP machine; compliance was an issue.  The examination recommended continued use of the CPAP with better emphasis on compliance.  Physical examination, including the heart and lungs was normal.  

The CI failed to report for his scheduled VA Compensation and Pension (C&P) examination stating he would be overseas.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the “obstructive sleep apnea, not controlled with CPAP” condition 30%, with a non-compliance deduction of 30%, coded 6847, for a combined rating of 0%.  The VA rated the Sleep Apnea condition “not service connected,” also coded 6847, citing no show for the VA C&P examination and medical evidence of record failed to show evidence of a current disability.  

While non-compliance with generally acceptable medical standards of care can affect the severity of a ratable condition, once a condition is determined to be unfitting, the panel must rate the condition IAW VASRD guidelines.  The VASRD rating criteria under 6847 for the OSA condition do not incorporate non-compliance as a deduction for rating.  The OSA condition was documented in the service treatment record, the CI was placed on a 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 establishes that the latter criterion was met in this case.  There was no evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale (right heart failure), 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 majority recommends a disability rating of 50% for the “obstructive sleep apnea, not controlled with CPAP” condition, coded 6847.

BOARD FINDINGS:  In the matter of the “obstructive sleep apnea, not controlled with CPAP” condition, the panel majority recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  The single voter for dissent recommends no change and submitted the appended minority opinion.  There are 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, Not Controlled with CPAP	6847	50%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150914, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
MINORITY OPINION

The minority voter and in this case, the panel president, strongly recommends no recharacterization of the CI’s OSA condition from the 0% adjudicated by the PEB.  There is no evidence the PEB was incorrect at time of separation.  The CI was overweight and treatment program non-compliant.  The non-compliance, not his actual condition, made him non deployable and unable to accomplish his mission, resulting in separation.  Many OSA complaint service members successfully serve to retirement.  The PEBs rating of 0% is further supported by the VA rating decision less than a year later that adjudicated the CI’s condition as not service connected.  The PEB correctly adjudicated the CI’s condition at time of separation and the totality of the STR supports their rating.  The panel president again strongly recommends no recharacterization in this matter.

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-02351.

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.  The Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I 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 XXXXXXXXXXXXXXXXXX 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,

XXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings