RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2012-01039
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140321
Separation Date:  20020906

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a TSgt/E-6 (3P071, Security Forces) medically separated for obstructive sleep apnea (OSA).  The CI was activated on 5 November 2001 and shortly thereafter was given a temporary P-4 profile for difficulty breathing while sleeping.  His condition and profile improved slightly then worsened at which point he was given the diagnosis of severe sleep apnea.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was issued a P3 profile and referred for a Medical Evaluation Board (MEB).  The OSA, characterized as “severe sleep apnea” was identified by the MEB, along with a condition identified as status post thyroid cancer w/resection, with the recommendation of return to duty.  A subsequent review by the Air Force Reserve Command, Aerospace Medicine Branch medically disqualified the CI and forwarded that recommendation to the Physical Evaluation Board (PEB).  The No other conditions were identified by the MEB.  The Informal PEB adjudicated the sleep apnea as unfitting, rated 0%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was activated while still being treated for thyroid cancer.  Possible exposure when deployed to Kuwait.  I feel I should have been allowed to change jobs and finish out enlistment for retirement.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting OSA is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records (BCMR).

RATING COMPARISON:

Service IPEB – Dated 	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea	6847	0%	No VA Entry	Service Treatment Record (STR)	
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20031230 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges that the PEB adjudication and STR’s for the CI’s OSA were referenced, but not available in the evidence before it; and, could not be located after the appropriate inquiries.  Numerous attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.  The missing evidence will be referenced below in relevant context.  Additionally, The Board acknowledges the CI’s assertions that “I feel I should have been allowed to change jobs and finish out enlistment for retirement.”  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  These issues may be addressed by the BCMR and/or the United States judiciary system.

OSA Condition.  In August 2001, the CI presented with symptoms of snoring, sleep apnea and excessive daytime somnolence.  The CI was activated on 5 November 2001 and was placed on a P-3 profile on 8 November 2001 for difficulty breathing while sleeping.  The profile was reverted back to a P-2 profile after review on 9 November 2001 since his symptoms had not changed since early October 2001.  A polysomnogram (sleep study) was completed on 11 January 2002 which revealed severe OSA and the examiner recommended a trial of continuous positive airway pressure (CPAP) during a repeat overnight polysomnography.  Repeat sleep testing with CPAP demonstrated an inadequate study as the CI was unable to tolerate the CPAP mask.  A CPAP machine was ordered and the examiner changed the profile to a P-4 profile.  It is unclear if the CPAP resulted in any improvement of the CI’s symptoms or if he actually used it as directed.  The examiner opined that the OSA would require lifetime follow-up and recommended that the CI be relieved from active duty.  The MEB narrative summary exam documented that the CI required the use of a CPAP machine while sleeping and this made him non-deployable; however, he had been able to perform all of his duties without restriction because he was able to go home to sleep and use his CPAP machine.  The initial commander’s statement indicated that the CI’s unit was required to deploy every year as part of the field training; however, the CI was able to fill one of the peacetime tasked positions.  The second commander’s statement noted that the CI’s profile specified no duty away from home station and that he had an oxygen mask that he had to wear while sleeping.

The Board directs attention to its rating recommendation based on the above evidence.  There is no evidence of a PEB document for review in this case; however, the Board was able to confirm that the CI was separated for OSA and received severance pay.  There was no VA examination for severe OSA.  The CI was diagnosed with severe OSA and required a CPAP machine at night for sleeping.  He was profiled for the OSA and was restricted to no duty away from the home station.  Although he was able to perform peacetime duties at his home station, the use of a CPAP machine would make him non-deployable.  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.  VA Schedule for Rating Disabilities (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 (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.  The Board surmised that the PEB relied on non-VASRD guidelines for rating the OSA condition and the condition was adjudicated independently of those guidelines by the Board.  In the matter of the OSA 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	
Obstructive Sleep Apnea	6847	50%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120612, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXX
President
Physical Disability Board of Review
PDBR PD-2012-01039

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Physical Disability Board of Review and under the authority of Title 10, United States Code, Section 1554a (122 Stat. 466) and Title 10, United States Code, Section 1552 (70A Stat. 116) it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXXXXXXX, be corrected to show that:

		a.  The diagnosis in his finding of unfitness for Obstructive Sleep Apnea, VASRD code 6847, was rated at 50% rather than 0%.

		b.  He was not discharged on 10 September 2002 with entitlement to disability severance pay; rather, on that date, he was released from active duty and on 11 September 2002 his name was placed on the Permanent Disability Retired List.

		c.  He married on 21 December 2012, and on 22 December 2012, he elected spouse-only Survivor Benefit Plan coverage based on full retired pay for his current spouse, XXXXXXXXXXXXXX.

XXXXXXXXXXXXXX
Director
Air Force Review Boards Agency