NAME: XXXXXXXXXXXX.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

CASE: PD-2017-00286

BRANCH OF SERVICE: AIR FORCE	SEPARATION DATE: 20070801

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Security Forces Journeyman, medically separated for “obstructive sleep apnea” with a disability rating of 0%.

CI CONTENTION: The VA rated him 70% in 2015 for his 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 - 20070620	VARD - 20071226	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea (OSA)	6847	*0%	Sleep Apnea	6847	50%	20071207	
Esophagitis (Barret’s Esophagus) and Hiatal Hernia	Cat II	Esophageal Reflux Disease, Hiatal Hernia, with History of Barrett’s Esophagus	7346	10%	20071207	
Obesity	Cat III	No VA Exam in Evidence	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 60%	
*PEB rated the OSA at 30%, then deducted 30% for aggravating/contributory factors (obesity and noncompliance).

ANALYSIS SUMMARY:

Obstructive Sleep Apnea (OSA). According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s OSA condition began in approximately November 2005 after he was noted to have fallen asleep at work. A sleep study was performed on 7 November 2005 to evaluate complaints of excessive daytime fatigue. The diagnosis of mild OSA/hypopnea syndrome  was  confirmed,  and  nightly  CPAP  (continuous  positive  airway  pressure)  was

prescribed. A follow-up sleep study on 15 December 2005 again confirmed the OSA/hypopnea syndrome and CPAP was recommended at 11 cm of water. At a family practice clinic appointment on 7 March 2006 the examiner reported that CI was “doing well with the CPAP machine.” Obesity (height 65 inches, weight 212.25 pounds, and BMI 35.32) was discussed as related to sleep apnea and the CI was educated about diet, weight loss, and exercise. At a family practice clinic visit on 6 March 2007 the CI’s weight was 189.6 pounds with a BMI of 31.55. The 15 May 2007 MEB NARSUM examination, 3 months prior to separation, noted the CI continued to suffer from excessive daytime fatigue despite nightly use of the CPAP. He stated that he periodically and subconsciously removed the mask during the night. Physical examination revealed the CI’s weight to be 190 pounds with a BMI of 33.

At the 7 December 2007 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported nightly use of his CPAP, but would often pull it off inadvertently during the night and sometimes did not wake up to put it back on. He experienced some daytime hypersomnolence, primarily when he pulled off the CPAP. Physical examination revealed the CI’s height to be 64 inches and his weight to be 200 pounds. His chest and lungs were normal as was his cardiovascular system. At his 23 April 2008 VA clinic new patient interview and examination, 8 months after separation, he again reported CPAP use, saying he moved a lot at night and “sometimes the mask also moves.”

The panel directed attention to its rating recommendation based on the above evidence. The PEB initially rated the OSA condition 30%, coded 6847, then deducted 30% for aggravating/contributory factors. The aggravating/contributory factors were obesity, which contributed to the severity of the OSA, and noncompliance, based on the CI’s refusal to undergo an uvulopalatopharyngoplasty (surgery to shorten the uvula in the back of the throat) that the PEB stated would provide an excellent chance of greatly improving the OSA. It then rated the CI 0%, stating the OSA was not controlled with CPAP. The VA rated the OSA condition 50%, coded 6847, citing requirement for use of CPAP and continued persistent day-time hypersomnolence.

The OSA condition was documented in the STR 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, corpulmonale, 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: Esophagitis (Barrett’s Esophagus) and Hiatal Hernia. The panel’s main charge is to assess the fairness of the PEB’s determination that the contended Category II conditions (conditions that can be unfitting but are not currently compensable or ratable) were not unfitting. The contended conditions were not profiled since conditions are not listed on the Air Force physical profile serial report. The commander’s statement did indicate the CI was not able to fulfill security force requirements because of multiple conditions, including a hiatus hernia and Barrett’s esophagitis as well as the OSA. On 15 September 2005 the CI complained of heartburn especially when lying down at night. A barium swallow study in September 2005 was negative for a history of dysphagia (difficulty swallowing) and regurgitation (reflux). Biopsy results from an esophagogastroduodenoscopy (EGD) in December 2006 revealed mild inflammation of the antral mucosa of the stomach and findings consistent with reflux esophagitis with a small focus consistent with Barrett’s esophagus without dysplasia (irregular cells). Special staining was negative for H. pylori (bacteria). A note dated 21 December 2006 indicated the CI had taken over-the-counter medications (Pepto-Bismol, Tums, Maalox, and Mylanta) for gastroesophageal reflux disease (GERD) without any significant improvement. At a family practice clinic visit dated 4 January 2007, the CI indicated he had no side effects with Prevacid (lansoprazole to treat GERD).         An acute abdomen series dated 10 January 2007, ordered for

nausea and vomiting, was negative. Despite Prevacid the CI still had significant regurgitation with activity such as running or sit-ups, although pain decreased. Biopsies from an EGD performed in April 2007 revealed mild inflammation at the gastroesophageal junction and minimal inflammation and slight edema of the antral mucosa of the stomach, and were negative for features of Barrett’s esophagitis. Special staining was negative for H. pylori. At a gastroenterology consultation on 10 April 2007, 4 months prior to separation, the CI reported he was overall improved with twice a day dosing of the Prevacid. The possible benefit of a Nissen fundoplication (esophageal surgery) was discussed and he was recommended to have six small meals, a low fat diet, lose weight, and discontinue smoking.

There was no performance-based evidence from the record that the conditions 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 Category II conditions; so no additional disability rating is recommended.

Contended PEB Condition: Obesity. Obesity is not a physical disability and not subject to a determination of fitness or unfitness and is not compensable or ratable.

BOARD FINDINGS: In the matter of the OSA condition, the panel recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97. In the matter of the contended esophagitis (Barrett’s esophagus) and hiatal hernia conditions, the panel recommends no change from the PEB determinations as Category II conditions and cannot recommend either condition for an additional disability rating. In the matter of the contended Category III obesity condition, the panel recommends no change from the PEB determination. There are no other conditions within the panel’s scope of review for consideration.

The panel recommends the CI’s prior determination be modified as follows; and the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Obstructive Sleep Apnea	6847	50%	

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear xxxxxxxxxxxxxxxxxx

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-00286.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.