RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00603
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20040116

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

CI CONTENTION:  “10% is non-substantive, yet disability has sufficient to render me ineligible for continued service.  Knee injury has plagued civilian life, was sustained in Basic Training, yet was not unfitting.  V.A rates at 60%.”  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 at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 - 20031103	VARD - 20040614	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea	6847	0%	Obstructive Sleep Apnea	6847	50%	20040527	
History of Patellofemoral Syndrome	5003-5299	Cat II	Degenerative Joint Disease, Right Knee	5010	10%		
			Degenerative Joint Disease, Left Knee	5010	NSC		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Obstructive Sleep Apnea (OSA).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s was diagnosed with circadian rhythm sleep disorder, delayed sleep phase in May 2002, after complaints of difficulty falling asleep.  The CI participated in behavioral sleep management with excellent success and the condition was noted to be resolving.  The 11 June 2003 sleep study was performed to evaluate complaints of excessive daytime sleepiness and snoring, to rule out sleep apnea. The study confirmed the diagnosis of mild OSA, and suggested a trial of continuous positive airway pressure therapy (CPAP).  The profile dated 23 June 2003 specified that the CI could perform normal duties with duty restriction; however, the CI was not worldwide qualified and the diagnosis was sleep apnea requiring CPAP.  

At the time of a primary care appointment on 28 June 2002, the CI complained of chronic fatigue for several years prior to joining the AF and complained of problems getting to sleep.  Fatigue was increasing and CI was having difficulty awakening in the morning.  The examiner questioned the diagnoses of circadian rhythm sleep disorder versus other diagnoses like personality disorder and requested reanalysis and consideration of polysomnography.  At the primary care appointment on 16 July 2003, the CI reported an allergic reaction to the CPAP mask that caused swelling to his face.  He also reported that he was sleeping better on CPAP.  

At the 5 August 2003 MEB NARSUM examination, 6 months prior to separation, the examiner diagnosed the CI’s condition as OSA, requiring CPAP for correction of symptoms and recommended indefinite use of the CPAP machine.  The examiner also noted that the CI had a current profile of a 4T and was not worldwide duty qualified.  The 18 October 2003 commander’s statement reported that the CI’s medical “condition has caused a lack of alertness and situational awareness, which creates a risk for him, his co-workers and the mission.”  The commander further reported “based on his diagnosis with obstructive sleep apnea and his required use of a breathing assistance machine he has been place on a profile (dated 23 June 2003) which restricts him from deploying worldwide.”  At the pulmonary appointment on 24 October 2003, the examiner opined that the CI was properly diagnosed in May 2002 with a sleep phase disorder and that the CI reported difficulty falling asleep, which is not a typical symptom of sleep apnea.  The examiner additionally noted on 31 October 2003, “Sleep phase disorder is completely different than sleep apnea, and does not predispose to nor evolve into sleep apnea.”  The 1 June 2004 VA Compensation and Pension (C&P) evaluation, 5 months after separation, reported that symptoms of OSA were helped by the use of the CPAP machine and the CI had little residual sleepiness and good quality sleep.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA condition 0%, coded 6847 (sleep apnea syndromes), with application of DoDI 1332.39 rating guidance, which differed from VASRD rating criteria, citing that the CI testified to having sleep phase disorder prior to entering the service and that symptoms were more appropriately attributed to sleep disorder rather than sleep apnea.  The VA rated the OSA condition 50%, coded 6847, citing a current diagnosis of obstructive sleep apnea which requires the nightly use of a CPAP machine.

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 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 OSA condition, coded 6847.  

Contended PEB Condition:  History of Patellofemoral Syndrome.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The NARSUM examination noted the latest flare up of right patellofemoral pain was December 2002, with no mention of left patellofemoral pain.  On the 4 December 2003 Form 2697, the CI did not implicate patellofemoral pain (right or left) as interfering with his ability to work in his primary MOS.  Although implicated in the commander’s statement as impacting duty performance, the contended condition was not profiled nor judged to fail retention standards.  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 OSA condition, the panel unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.96.  In the matter of the contended patellofemoral syndrome condition, the panel unanimously recommends no change from the PEB determinations as not unfitting.  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	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160912, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2016-00603.

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,

Attachment:
Record of Proceedings