RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-00598
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070321

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Infantryman, medically separated for “obstructive sleep apnea [OSA], requiring nightly use of CPAP [continuous positive airway pressure, breathing assistance device]” with a disability rating of 0%.

CI CONTENTION:  He was given a higher rating by the VA for the unfitting condition.   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 - 20061024	VARD - 20070615	
Condition	Code	Rating	Condition	Code	Rating	Exam	
OSA Requiring CPAP	6847	0%	OSA ... Restrictive Airway Disease	6847	50%	20060818	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

OSA requiring CPAP.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was diagnosed with OSA by a sleep study in August 2005 and started on CPAP.  Subsequent STR provider entries documented daytime somnolence, fatigue, and headache symptoms improved with CPAP use.  The CI additionally underwent corrective surgery (uvulopalatopharyngoplasty) in January 2006.  Follow-up entries documented his previous snoring had resolved after surgery, but he still required CPAP to remain symptom-free (confirmed by a trial off CPAP).  There was ample STR corroboration of compliance with nightly CPAP use.  The STR confirmed no respiratory failure, cor pulmonale (excluded by ECHO), or tracheostomy, which are VASRD criteria for highest rating of OSA.

The 18 August 2006 VA Compensation and Pension (C&P) examination, 7 months before separation, reported continued daytime symptoms and documented CPAP use.  The P3 profile and commander’s performance statement corroborated the CPAP requirement. The 4 September 2006 MEB NARSUM examination, 6 months prior to separation, documented OSA symptoms “were clearly reversed [with CPAP].”

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 application of DODI 1332.39 (E2.A1.2.21).  The VA rated the OSA condition 50%, also coded 6847, based on the C&P examination, citing CPAP requirement.  The panel agreed that code 6847 is clearly applicable and VASRD §4.97 provides for a minimum rating of 50% for OSA requiring a breathing assistance device.  The evidence establishes that the latter criterion was met.  There was no evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy to support a higher rating.  After due deliberation, considering all 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 OSA condition, the panel 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 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, Requiring Nightly use of CPAP	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170214, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

XXXXXXXXXX 

Dear XXXXXXXXXX:

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