RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01513
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040624

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Aviation Technician, medically separated for “obstructive sleep apnea, requiring CPAP” with a disability rating of 0%.  

CI CONTENTION:  His rating for sleep apnea should have been service connected, and submitted a lengthy letter with the application.  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 (VA), 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 - 20040404	VARD - 20051004	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea…	6847	0%	Obstructive Sleep Apnea	6847	NSC	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Obstructive Sleep Apnea (OSA).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), a sleep study was performed in June 2000 to evaluate optimal continuous positive airway pressure (CPAP) pressure (the CI had previously been diagnosed with upper airway resistance syndrome and had repeated arousals in his sleep continuity).  A previous study confirmed the diagnosis of OSA and nightly CPAP was prescribed.  

The commander’s letter, dated 6 December 2003, stated that he did not expect the CI to be retainable due a shoulder condition and his dependence on a breathing machine for the sleep apnea.  The permanent profile, dated 8 December 2003, listed obstructive sleep apnea and limitations of no wearing of the promask.  
The 24 March 2004 MEB NARSUM examination, 2 months prior to separation, noted complaints of excessive daytime somnolence and snoring, choking sensation, waking up gasping and witnessed apnea.  The examiner noted the CI’s Epworth sleepiness scale was 15/24 (indicating significant somnolence), was using the CPAP at recommended levels from the above titration study and reported that the CI required access to an electrical outlet on a nightly basis for use of the CPAP machine.  The MEB forwarded “obstructive sleep apnea” for PEB adjudication.  The 3 September 2005 VA Compensation and Pension (C&P) spine evaluation, 15 months after separation, provided no pertinent information other than to state that the CI was diagnosed with OSA and discharged from the military.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA condition 0%, coded 6847, with application of DoDI 1332.39 rating guidance, which differed from VASRD rating criteria.  The PEB also stated the disability existed prior to service and was not permanently aggravated by service, but is compensable with 10 USC 1207a.  The VA determined the OSA condition was not service-connected.  The OSA condition was documented in the STR, 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 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.  In consideration of these facts, the panel unanimously recommends a disability rating of 50% for the OSA condition, coded 6847.  

BOARD FINDINGS:  In the matter of the obstructive 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	
Obstructive Sleep Apnea	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170524, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180001640, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure