RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201450
BRANCH OF SERVICE:  Army	BOARD DATE:  20130423
SEPARATION DATE:  20050408

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SGT/E-5 (91W20/Medic) medically separated for obstructive sleep apnea (OSA).  He was evacuated from Iraq in 2004 for what presented as a potential cardiac issue.  Upon further evaluation at home station, he was diagnosed with sleep apnea and started on continuous positive airway pressure (CPAP) therapy.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS), he was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The OSA condition, characterized as “severe” by the MEB was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (contact dermatitis with lower extremity edema, hypertension, hyperlipidemia and anxiety disorder), judged to meet retention standards.  The Informal PEB (IPEB) adjudicated the OSA requiring CPAP condition as unfitting, rated 0%.  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals, and was medically separated with a 0% disability rating.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 condition 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.

RATING COMPARISON:  

Service IPEB – Dated 20050323	VA - (5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea	6847	0%	Obstructive Sleep Apnea	6847	50%	20050906	
Contact Dermatitis..LE Edema	Not Unfitting	Dermatitis	7899-7806	0%	20050906	
Hypertension	Not Unfitting	Hypertension	7101	NSC	20050906	
Hyperlipidemia	Not Unfitting	No VA Entry	
Axis I: Anxiety Disorder	Not Unfitting	PTSD w/ Dysthymic Features	9411	10%*	20050901	
No Additional MEB/PEB Entries	Other x 1	20050906	
Combined:  0%	Combined:  60%	

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veteran Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Administration Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Obstructive Sleep Apnea Condition.  The CI was a 46 year old Army Reserve member who was re-deployed home by medevac from Iraq, in 2004, for lower extremity edema and shortness of breath.  He had received one prior sleep study, in 2002, which at that time, had ruled out OSA.  The diagnosis of severe sleep apnea was made after a sleep study and pulmonology consultation, in Dec 2004, noted severe hypoxia and extensive oxygen desaturation during sleep.  Pulmonary consultation noted heavy snoring, daytime somnolence, sleepiness while driving, choking respiration, and altered sleep architecture.  The room air blood gas noted hypoxia, with a resting pO2 at 66mmHg (very low), but a normal pCO2 at 39 mmHg, with no evidence of carbon dioxide retention which would suggest respiratory failure.  The narrative summary (NARSUM), 15 months prior to separation, noted the diagnosis of OSA and that the CI failed to meet retention criteria IAW AR 40-501 paragraph 3-41c.  The PEB found him unfit for continued service, noting that although this condition existed prior to mobilization, he was compensable because of the 8-year rule.

At the VA Compensation and Pension (C&P) exam performed, 5 months after separation, the CI claimed that his illness began in Iraq and was associated with a 40 pound weight loss.  The VA examiner noted that the CI’s medical record noted a long history of loud snoring, reported by his wife.  The VA noted that his polysomnogram noted positional sleep-disordered breathing with a “good response to CPAP.”  The CI noted that there was no adverse side effect to his CPAP treatment and that his course was improved.

The Board directs attention to its rating recommendation based on the above evidence.  The diagnosis of OSA, dependent upon CPAP, is well established from the CI’s pulmonary consultation of December, 2004.  Favorable response to CPAP is well documented.  The PEB’s DA Form 199 assigned a 0% rating, and based the fitness adjudication solely on field impediments to the use of CPAP.  Contemporary PEBs across all of the Services no longer consider OSA to be unfitting solely on that basis; but, this Board, by legal opinion and firm precedent, does not make contrary recommendations to a PEB determination that a condition was unfitting.  The VA rated this condition at 50% due to the requirement for constant use of a CPAP device.  Although the PEB’s rating adjudication had been acceptable by DoDI 1332.39 standards, the Board is obligated to a rating recommendation compliant with concurrent VASRD standards.  VASRD mandates a minimum rating of 50% under 6847 for OSA requiring a breathing assistance device.  In consideration of the evidence, and IAW DoDI 6040.44, the Board must recommend a disability rating of 50% for the OSA condition.  This case does not meet the criteria for 100% because, at no time, was there evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale.

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 OSA 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.  In the matter of the OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.71a.  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 20120908, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	
	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130009083 (PD201201450)

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						

						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA