RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02080
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Cannon Crewmember, medically separated for “chronic obstructive sleep apnea (OSA)” with a disability rating of 0%.  

CI CONTENTION:  The CI requested review of OSA and additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20050531	VARD - 20060208	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic OSA	6847	0%	OSA	6847	50%	20060105	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Obstructive Sleep Apnea (OSA).  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), a sleep study was performed in September 2004 with a follow on study in December 2004 to evaluate complaints of excessive daytime somnolence.  He had been experiencing sleep problems since June 2001 to include an inability to stay awake during classes and, when deployed, difficulty staying awake during guard duty.  Upon his return to the United States his symptoms worsened as he had difficulty staying awake while driving, during meetings, and while eating.  The studies confirmed the diagnosis of OSA, and nightly CPAP (continuous positive airway pressure) and BIPAP trials were prescribed but the CI was unable to tolerate the masks for this treatment plan.  On 22 March 2004 the CI underwent tonsillectomy, adenoidectomy, and septoplasty to address chronic nasal obstruction, septal deviation, OSA, and large tonsils.  The permanent profile dated 13 January 2005 specified that the CI could not deploy and was required to work regular daytime hours.  A third sleep study was conducted on 12 April 2005 which ruled out narcolepsy.  The pulmonology examiner reported that the CI required the nightly use of the CPAP machine.  

The 5 May 2005 MEB NARSUM examination, 2 months prior to separation, noted that the symptoms of OSA were helped by the use of the CPAP machine even though the CI did not tolerate the wearing of the CPAP mask well at night.  A neurology evaluation on 8 June 2005 noted that the CI slept well with the use of CPAP.  The 5 January 2006 VA Compensation and Pension (C&P) examination, 6 months after separation, reported that symptoms of OSA were relieved by the use of the CPAP machine and nasal pillows.  

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 DoDI 1332.39 rating guidance which differed from VASRD rating criteria.  The VA rated the OSA condition 50%, also coded 6847, citing the required use of a CPAP machine.  The OSA condition was documented in the STR, was placed on a permanent profile, 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.   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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
OSA	6847	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170222, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR 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