RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00033
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030828

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Infantryman, medically separated for “sleep apnea…” with a disability rating of 0%.

CI CONTENTION:  “Review all conditions.”  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 - 20030728	VARD - 20021209	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sleep Apnea…	6847	0%	No VA Rating 	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Sleep Apnea.  Primary source material was not available in evidence before the panel, and could not be located.  Furthermore, there was no VA Compensation and Pension (C&P) evaluation related to sleep apnea in evidence.  Further attempts at obtaining the missing documents would likely be unsuccessful and introduce additional delay in processing the case.  It was judged by the members of the panel that the missing evidence would not materially alter the panel’s recommendations.

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s sleep apnea condition first manifested as heart palpitations while he was deployed in October 2002.  After a cardiac catheterization, the CI was referred to pulmonary medicine where a polysomnogram revealed sleep apnea and he was stabilized on continuous positive airway pressure (CPAP) at 9 mm of water.   During the 28 May 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the examiner noted sleep apnea in the summary of defects and diagnoses.  

The commander’s statement dated 11 July 2003 indicated the CI was physically incapable of performing his duties due to the diagnosis of sleep apnea.  The condition required the CI to use a CPAP machine on a regular basis and the apparatus could not be taken into a field environment.  His MOS required him to perform rigorous physical training, perform extensive marching exercises, and carry an excessive amount of gear.  A permanent profile was issued on 16 July 2003 for sleep apnea with limitations that the CI must be allowed access to a CPAP machine at all times.  

The 16 July 2003 MEB NARSUM examination, 1 month prior to separation, showed a male in no acute distress without any muscular atrophy and who appeared to have good flexibility in the range of motion.  The examiner noted that it appeared the main limitation on the CI’s functional status was that he had CPAP and would require the CPAP in order to perform his job in an alert fashion.  There was no VA examination in evidence proximate to separation relating to sleep apnea. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the sleep apnea condition 0%, coded 6847 (sleep apnea), citing continual CPAP treatment.  The sleep apnea condition was documented in the STR; the CI was placed on a permanent profile for obstructive sleep apnea; and CPAP was identified by the NARSUM examiner as a required treatment.  VASRD §4.97 provides for a minimum rating of 50% for obstructive sleep apnea 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 the requirement for a tracheostomy to support the next higher 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 sleep apnea condition, coded 6847.  

BOARD FINDINGS:  In the matter of the sleep apnea condition, 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	
Sleep Apnea	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151213, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013192, 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