RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01040
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040430 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Cavalry Scout, 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 - 20040329	VARD - 20040517	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sleep Apnea	6847	0%	Sleep Apnea  	6847	50%	20040422	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50% 	

ANALYSIS SUMMARY:  

Sleep Apnea.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI began experiencing fatigue in June 2003 and a sleep study in January 2004 confirmed a diagnosis of obstructive sleep apnea (OSA); nightly BiPAP (bi-level positive airway pressure) was prescribed.  

At the 2 March 2004 MEB NARSUM examination, 2 months prior to separation, the examiner stated that the CI “will need to be placed and stationed somewhere where he can use his CPAP [continuous positive airway pressure] machine.”  Upon examination, the CI was ambulatory, appropriately awake, and functioned well with CPAP use.  He was not in any significant pain, and his prognosis was good.  The 22 April 2004 VA Compensation and Pension (C&P) evaluation, 8 days before separation, documented that the CI’s OSA symptoms were relieved by using his CPAP machine.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA condition 0%, coded 6847 (sleep apnea), citing application of DoDI 1332.39 rating guidance. The VA rated the OSA condition 50%, also coded 6847, citing “prescribed a Bi-Pap machine for control.”  The OSA condition was well documented and CPAP use was profiled as a required treatment by the NARSUM examiner.  VASRD §4.97 provides for a minimum rating of 50% for OSA requiring a breathing assistance device.  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.  

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 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	
Sleep Apnea  	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160924, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170018921, 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