RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00781
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Cavalry Scout, medically separated for “obstructive sleep apnea requiring C-PAP” with a disability rating of 0%.  

CI CONTENTION:  The CI listed a series of conditions but made no specific contention.  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 - 20040311	VARD - 20040810	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea Requiring C-PAP	6847	0%	Sleep Apnea	6847	50%	20040226#####	
Right Knee Chondromalacia Symptomatic Plicas	Not Unfitting	Chondromalacia Patella, Status Post Arthroscopy	5014	10%	20040226	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

Obstructive Sleep Apnea (OSA) Requiring C-PAP.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), a sleep study was performed in January 2003 to evaluate complaints of extreme daytime drowsiness, fatigue and loud snoring.  The study confirmed the diagnosis of severe OSA, and nightly CPAP [continuous positive airway pressure] was prescribed.  At the time of the 20 August 2003 retention examination (recorded on DD Forms 2807 and 2808), 10 months prior to separation, the examiner reported that the CI’s symptoms of OSA were improved by the use of the CPAP machine.  

The 30 January 2004 MEB NARSUM examination, 5 months prior to separation, and the MEB psychiatric addendum dated 24 February 2004, noted that the symptoms of OSA were alleviated by use of the CPAP.  Without the CPAP he became extremely drowsy.  Mental status examination (MSE) was unremarkable.  The 26 February 2004 VA Compensation and Pension (C&P) evaluation, 4 months before separation, reported that the CI no longer had fatigue and daytime somnolence since using the CPAP and did not have shortness of breath or dyspnea on exertion.  

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.  The VA rated the OSA condition 50%, coded 6847 (sleep apnea syndromes), based on the C&P examination 4 months before separation, citing prescription of a CPAP machine for control of the condition.  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 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 this criterion was met.  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:  Right Knee Chondromalacia Symptomatic Plicas.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not judged by the MEB to fail medical retention standards.  The right knee was mentioned on the physical profile with a code of L2, which is defined as “slightly limited mobility of joints, muscular weakness, or other musculoskeletal defects that do not prevent moderate marching, climbing, timed walking, or prolonged effort.”  The commander stated in his performance statement “with this profile he is still physically capable of performing his MOS.”  He passed all his physical fitness tests during the period leading up to referral to the MEB for his OSA condition.  Therefore, there was no performance-based evidence from the record to indicate that the condition significantly interfered with satisfactory duty performance at separation.  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 §4.97.  In the matter of the contended right knee condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  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 Requiring C-PAP	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017975, 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