RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200787 SEPARATION DATE: 20031020 BOARD DATE: 20130206 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M10/Motor Vehicle Operators), medically separated for moderate to severe obstructive sleep apnea (OSA) requiring nightly use of a continuous positive airway pressure (CPAP) machine. The CI first sought treatment for complaints of daytime somnolence and witnessed apneic episodes at his Troop Medical Clinic on 4 November 2002. A polysomnogram revealed the presence of moderate to severe OSA in November 2002 and the member was subsequently started on CPAP. Despite otolaryngology and oral maxillofacial evaluations along with nightly use of the CPAP machine, the CI failed to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. The CI was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded moderate to severe OSA to the Physical Evaluation Board (PEB). The PEB adjudicated the moderate to severe OSA requiring nightly use of CPAP condition as unfitting, rated 0%, with application of the IAW AR 635-40 APPENDIX B- 107 PARA e. and Department of Defense Instruction (DoDI) 1332.39, E2.A1.2.21. The CI made no appeals, and he was medically separated with a 0% disability rating. CI CONTENTION: “Rated 50% by the VA but rated 0% by the Army. I was separated from service from the Army (Active Duty) and I had planned to make a career of military service. This became impossible since sue [sic] to being separated. I require the use of a CPAP machine to sleep and must have electric power when I sleep. This requires me to have a back-up generator at my house which I had to purchase at my own expense. I joined the Army in response to the terrorist attacks on September 11, 2001. I was 33 years old at the time and gave up a very good job to join the military as I am very patriotic and deeply love my country. I sacrificed the stability of my career with a company I had worked at for 5 years and gave up over 50% of my salary to join the Army. I had planned on making a career out of the military, but became disabled with Severe Obstructive Sleep Apnea during my time on active duty. After a lengthy medical review board, I was found unfit for service and was separated from the Army on 20 October 2003. The MRB found me unfit for service but rated me zero percent disabled which does not make any sense. The VA rated me 50% disabled in 2003. To this day, and for the rest of my life I will have to sleep with a CPAP machine which requires me to have electricity whenever I sleep. This has affected my life as I was an avid outdoors person who regularly camped and enjoyed spending time in nature. I am unable to go camping anymore [sic] as I require electricity when I sleep. I also had to purchase a back-up generator for my house in the event of a power failure. I was not compensated for this expenditure. I am also impacted when I travel, as if the place where I am staying looses [sic] power and does not have a back-up generator, I am unable to sleep.” sic SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The unfitting moderate to severe OSA requiring nightly use of CPAP condition meets the criteria prescribed in DoDI 6040.44 for Board purview; and, is addressed below, in addition to a review of the ratings for the unfitting condition. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20030818 VA (~3 Months Pre-Separation) – All Effective Date 20031021 Condition Code Rating Condition Code Rating Exam Moderate to Severe Obstructive Sleep Apnea Requiring Nightly Use of CPAP 6847 0% Obstructive Sleep Apnea 6847 50% 20030707 Combined: 0% Combined: 50% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. Moderate To Severe Obstructive Sleep Apnea Requiring Nightly Use of CPAP Condition. The CI was seen in November 2002 for complaints of spouse witnessed apnea episodes three to four times nightly with gasping for air; struggling to breathe with snorting and awakening with a dry mouth, daytime somnolence; difficulty concentrating and memory problems due to lack of nighttime sleep; talking in his sleep; leg jerks; declining sex drive; depression and anxiety. The CI underwent a sleep study (Polysomnogram) in November 2002 which indicated a moderate to severe OSA syndrome evidenced by 227 obstructive apneas and 67 partial apneas along with an oxygen saturation range of 77% to 94% (normal 95%-100%) and an overall respiratory disturbance index of about 50 events per hour. The examiner opined that the CI would benefit significantly from CPAP titration. Because of throat abnormalities found on examination, the CI was referred to an otolaryngologist who determined that the CI was not a surgical candidate and recommended CPAP titration. The CI underwent a successful CPAP titration in January 2003. The CI was granted a P3 Profile with restrictions of “must have access to CPAP machine every night.” The commander’s statement indicated that the CI’s OSA affected his abilities to perform his MOS on a daily basis. The CI required electricity wherever he went to use his CPAP machine nightly; he was unable to run for any extended distance. Additionally, due to his respiratory condition and low blood oxygen levels, he was unable to run for any extended distance and would get short of breath while doing even moderate exercise. The VA Compensation and Pension (C&P) examination that was 8 days prior to the MEB narrative summary (NARSUM) exam and 3 months prior to separation noted a persistent sleep apnea condition despite the nightly use of the CPAP machine. The CI continued to have persistent tiredness, fatigue, depression, memory loss, and lack of motivation, weight gain, low sex drive, poor physical condition, headaches, body aches, difficulty concentrating, irritability, and the need for a nap in the afternoon. The examiner documented that the CI’s condition resulted in 10 hours per week of lost time from work for afternoon naps, and that although the “CPAP machine helped somewhat,” the CI would awaken at 3:00 or 4:00 am and would not be able to sleep with the CPAP machine on after that. There were abnormal physical findings of a redundant soft palatal and uvual tissue. A pulmonary function test (PFT) performed was normal. The NARSUM examination, completed 3 months prior to separation, indicated that the CPAP caused a significant improvement in symptoms but not a complete resolution. He continued to have occasional daytime somnolence and moodiness in addition to rare morning headaches. The CI was evaluated for potential surgery but two surgeons agreed that surgery was not indicated. Although the CI was able to complete his MOS duties of a truck driver, he was functionally impaired as he was considered unable to deploy or share barracks dwelling due to the lifetime need of the CPAP machine. The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA chose the same disability code 6847 for OSA, however the PEB rated 0% and the VA rated 50%. The PEB assigned a 0% rating for mild industrial impairment under DODI 1332.39 (E2.A1.2.21). Both the C&P exam and the NARSUM documented that although the CI used the CPAP machine on a nightly basis, the OSA symptoms did not completely resolve and he continued to have symptoms and require an afternoon nap. Contemporary PEBs across all services no longer consider OSA to be unfitting solely on this basis, but the Board, by legal opinion and firm precedent, does not make contrary recommendations to a PEB determination that a condition was unfitting. VASRD §4.97 mandates a minimum rating of 50% under 6847 for OSA requiring a breathing assistance device. In consideration of this evidence, and IAW DODI 6040.44, the Board must recommend a separation rating of 50% for the OSA condition. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board recommends a disability rating of 50% for the moderate to severe OSA requiring nightly use of CPAP condition. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on IAW AR 635-40 Appendix B-107 Para e. and DoDI 1332.39 for rating the moderate to severe OSA requiring nightly use of CPAP condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the moderate to severe OSA requiring nightly use of CPAP condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Moderate to Severe Obstructive Sleep Apnea Requiring Nightly Use of CPAP 6847 50% COMBINED 50% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120607, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxx, AR20130004601 (PD201200787) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% effective the date of the individual’s original medical separation for disability with severance pay. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 50% effective the date of the original medical separation for disability with severance pay. d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)