RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01548
BRANCH OF SERVICE:  army 	SEPARATION DATE: 20041014

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve W2, Helicopter Pilot, medically separated for “obstructive sleep apnea” with a disability rating of 0%.

CI CONTENTION:  “The rating computed by the U.S. Army was unfair and inaccurate.  When compared to the final percentage awarded by the Veteran Affairs Schedule for Rating Disabilities (VARD) it is clear that the rating given at separation was incorrect.  All medical conditions reported to the VA should be reviewed, and the Army rating should be changed to provide fair compensation for ongoing service ending medical 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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040910	VARD - 20050131	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea	6847	0%	Obstructive Sleep Apnea	6847	50%	20041108	
Hypertension	Not Unfitting	Hypertension	7107	0%		
Overweight		Overweight	7099-7005	NSC		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

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 OSA condition began in July 2003 after problems with daytime hypersomnolence, loud snoring at night and persistent fatigue.  The CI participated in a sleep study in July 2003.  The CI had “significant apneic periods (71 episodes per hour) and a respiratory index of 72.”  A follow-up sleep study, nocturnal polysomnogram, was performed in December 2003, which revealed “severe obstructive sleep apnea with respiratory index of 85.”  A Continuous Positive Airway Pressure (CPAP) titration study showed the CI had an “excellent response to CPAP on 8 centimeters of water,” however the CI remained with feelings of not being “rested” when he awakens.  

During the 4 June 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported sleep apnea. The CI stated he continues to have difficulty tolerating the CPAP and had persistent tiredness in the mornings.  The examiner annotated “obstructive sleep apnea, failed surgery.”  The 29 April 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of OSA.  The examiner referenced previous polysomnography studies and annotated that with nasal CPAP titration of 8 cm of water, the CI’s respiratory disturbance decreased to one event.

At the 8 November 2004 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported that he remains tired, continues to snore and  his breathing continues to stop at night.  Physical examination showed excision of the uvula and cutting of the soft palate demonstrating a status post uvulopalatopharyngoplasty surgery was performed to assist in alleviating the OSA condition. The examiner noted the CI was using a CPAP machine.  The nasal was free of deformity and polyps; however the nasal turbinates were of normal size and slightly congested.

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) citing “improved with CPAP, rated as mild social and industrial impairment.”  The VA rated the obstructive sleep apnea condition 50% coded 6847 (sleep apnea syndromes) citing a breathing assistance device, such as a continuous positive airway pressure machine is required.  The panel agreed that the CI’s condition met criteria for a rating of 50% under medical diagnostic code 6847 due to the “required use of a breathing assistance device such as continuous airway pressure (CPAP) machine.”  A higher rating of 100% was not warranted for there was no indication that the CI suffered from “chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy.”  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 obstructive sleep apnea condition, coded 6847.  

Contended PEB Conditions:  Hypertension and Overweight.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the obstructive sleep apnea condition, the panel unanimously recommends a disability rating of 50% coded 6847 IAW VASRD §4.100.  In the matter of the contended hypertension and overweight conditions, 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 20161021, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004009, 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