RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE: pd-2016-01558
BRANCH OF SERVICE:  army	SEPARATION DATE:  20040930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Bradley Fighting Vehicle System Mechanic, medically separated for “obstructive sleep apnea [OSA] requiring CPAP [continuous positive airway pressure]” with a disability rating of 0%.

CI CONTENTION:  The CI 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 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 - 20070706	VARD - 20050126	
Condition	Code	Rating	Condition	Code	Rating	Exam	
OSA Requiring CPAP	6847	0%	OSA	6847	50%	20041213	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

OSA requiring CPAP.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was evaluated in April 2003 for witnessed sleep apnea by his roommate.  A diagnosis of OSA was confirmed by a sleep study in May 2003 and the CI was started on CPAP in July 2003.  There were primary care and otolaryngology notes that corroborated CPAP compliance and titration with a favorable response.  The 02 May 2007 MEB NARSUM examination, 5 months prior to separation, documented a diagnosis of “mild to moderate” OSA and noted that the CI was “doing well with his CPAP.”  The use of CPAP was corroborated by the MEB’s DD Form 2808 physical examination, the profile, and the commander’s statement.  The 13 December 2004 VA Compensation and Pension (C&P) General evaluation, 3 months after separation, documented that the CI was “feeling a lot better and more rested since starting the CPAP.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under code 6847 (sleep apnea syndromes) referenced the application of DoDI 1332.39, para E2.A1.2.21.  The VA’s 50% rating under the same code referenced the VASRD §4.97 50% criterion of code 6847, “requires use of breathing assistance device such as continuous airway pressure (CPAP) machine.”  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.  All members agreed that the evidence and VASRD criteria were unequivocal and mandated a 50% 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 OSA under code 6847.

BOARD FINDINGS:  In the matter of the obstructive sleep apnea, 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 his 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 20161017 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180004014, 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, (AHRCOD-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