RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-00939
                                 (CASE 2)
            INDEX CODE:  108.00

            COUNSEL:  GARY R. MYERS

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

He  be  medically  retired  and  his  name  placed  on  the  Permanent
Disability Retired List (PDRL) as of the date of his separation on  26
Jul 99.

He receive back retirement pay and allowances from  the  date  of  his
separation to the present.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While on active duty, he was suffering from undiagnosed  severe  sleep
apnea.  This condition rendered him unfit  for  duty.   The  condition
should have been the subject of a Medical Evaluation Board (MEB).   He
underwent three MEBs while on active duty.  In none of  the  MEBs  was
sleep apnea reported.  Nonetheless, his active duty medical record was
replete with references to a sleep disorder and potential sleep apnea.
 The apparent reason that sleep apnea was not tested for or  diagnosed
was that the sleep problems were treated as though they were secondary
to the diagnosed depression rather than a distinct  condition.   After
his separation, the sleep disorder continued.  A sleep study  revealed
that  he  had  severe  obstructive  sleep  apnea.   On  9  May  00,  a
respiratory continuous positive  airway  pressure  (CPAP)  device  was
ordered for him.  It is abundantly clear  that  he  had  severe  sleep
apnea while on active duty and that it was  undiagnosed.   The  severe
sleep apnea  warrants  medical  retirement  under  the  Department  of
Veteran Affairs (DVA) rating of disabilities.

In support of his appeal, the  applicant  provided  a  statement  from
counsel, a previous decision by the Air Force Board for Correction  of
Military Records (AFBCMR), his DD Form 214, Certificate of Release  or
Discharge from Active Duty, and medical documentation.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force,
on 11 Jun 87 and was voluntarily ordered to extended active duty on  5
Jan 88.

Applicant's  Officer  Performance  Report  (OPR)  profile  since  1988
follows:

      PERIOD ENDING    EVALUATION

      12 Nov 88              Meets Standards
      12 May 89              Meets Standards
      12 May 90              Meets Standards
      31 Jan 91              Meets Standards
      31 Jan 92              Meets Standards
      15 Jun 92              Meets Standards
      15 Jun 93              Meets Standards
      28 Aug 94              Meets Standards
      28 Aug 95              Meets Standards
       1 Jun 96              Meets Standards
       1 Jun 97              Meets Standards
       1 Jun 98              Meets Standards
       1 Jun 99              Meets Standards

On 28 Sep 98, a Medical  Evaluation  Board  (MEB)  was  conducted  and
rendered diagnoses of recurrent dislocation  of  his  right  and  left
shoulders (degenerative); medical compartment  arthritis,  right  knee
(patellofemoral arthritis); and left wrist with capsulodesis.  The MEB
recommended that the applicant’s  case  be  referred  to  an  Informal
Physical Evaluation Board (IPEB).

On 24 Feb 99, an MEB was conducted  and  rendered  diagnoses  of  left
shoulder  chronic  dislocation;  right  shoulder  chronic  subluxation
dislocation; right knee degenerative arthritis,  post-traumatic;  left
wrist intra carpal ligament disruption,  reconstructive  surgery;  and
median neuropathy.  The MEB recommended that the applicant’s  case  be
referred to an IPEB.  On 12 Mar 99, the IPEB found the  applicant  fit
for continued military service and recommended he be returned to duty.

On 9 Jun 99, an MEB was conducted and rendered diagnoses of  bilateral
shoulder instability, right shoulder chronic subluxation  dislocation;
bilateral  carpal  tunnel  syndrome,  mild;  status  post  left  wrist
scapholunate reconstruction; bilateral ulnar nerve  neuropathy;  right
knee early degenerative  disease;  left  ankle  degenerative  disease;
clavicular irritation/pain; and adjustment disorder with mixed anxiety
and depressed mood.  The MEB recommended that the applicant’s case  be
referred to an IPEB.  On 8 Jul 99, the IPEB found  the  applicant  fit
for continued military service and recommended he be returned to duty.


Applicant voluntarily resigned his commission on 26 Jul 99  under  the
provisions  of  AFI  36-3207  (Miscellaneous/General  Reasons),   with
service characterized as honorable.  He was credited with 11 years, 10
months, and 3 days of total active service.

On 27 Jul 99, the applicant accepted  a  commission  as  a  Air  Force
Reserve officer in the grade of major.

On 23 Aug 00, the Board considered an application  pertaining  to  the
applicant, in which he requested that his records be corrected to show
that he was medically separated from the Air Force on the date of  his
separation  with  disability  associated  with  documented  orthopedic
problems and major depression; and, that he receive separation pay.  A
majority of the Board recommended that his request  be  denied,  which
was accepted by the Director, Air Force Review Boards Agency on 5  Oct
00.

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently assigned to the Inactive  Status  List
Reserve Section (ISLRS) of the Air Force Reserve.

_________________________________________________________________

AIR FORCE EVALUATION:

The Medical Consultant recommended  denial.   The  Medical  Consultant
noted that shortly following his discharge from  the  Air  Force,  the
applicant  separated  from  his  wife  and  applied  to  the  DVA  for
disability  compensation  for  his  various  medical   problems.    He
presented to a Mental Health Clinic in Panama City  on  14 Dec 99  for
ongoing mental health symptoms.  In that  evaluation  his  history  of
sleep difficulties was detailed:  The  psychiatrist  ordered  a  sleep
study,  which  was  performed  on  13 Mar 00.   The  results  of   the
polysomnogram (sleep study) was  consistent  with  severe  obstructive
sleep apnea, but without evidence of significant hypoxemia (low oxygen
in the blood) or tachy/brady arrhythmias (heart  rhythm  abnormalities
associated with low oxygen).  A trial of CPAP delivered  by  a  device
that fits over  the  nose  did  benefit  the  patient  and  the  sleep
physician recommended the applicant sleep using a CPAP device.   On  9
May 00, a CPAP device was issued  to  the  applicant  by  the  Biloxi,
Mississippi, DVA hospital.

The Medical Consultant noted that a DVA Psychiatry evaluation  in  Feb
01 reported that: “He cannot stay awake.  He sleeps a lot  during  the
day since he is not able to sleep well during the  night  and  claimed
that he has severe sleep apnea.  He uses a CPAP  machine  but  claimed
that this is not  of  much  help.”   The  psychiatrist  diagnosed  the
applicant as having a major depressive disorder moderate to severe.  A
DVA disability rating decision dated,  24  Apr  01,  awarded  service-
connected compensation for the following:   Adjustment  disorder  with
mixed anxiety and depressed mood 30% from 7/27/99; 100% from 02-01-01;
Carpal   tunnel   syndrome,   left,   status   post    scaphulo-lunate
reconstruction and ulnar  nerve  neuropathy,  dominant  (10%);  Carpal
tunnel syndrome, right,  with  ulnar  nerve  neuropathy,  non-dominant
(10%); Degenerative joint  disease,  right  knee  (10%);  Degenerative
joint disease, right shoulder, nondominant, status post reconstructive
surgery with scar (10%); degenerative disease  left  ankle  (0%);  and
degenerative joint disease, left shoulder, dominant  with  instability
(0%), bilateral factor of 2.& added.  The DVA rating decision made  no
mention whatsoever of obstructive  sleep  apnea  indicating  that  the
applicant had not submitted a claim for this diagnosis.

According to the Medical Consultant, the applicant’s history of  sleep
disturbance while on active duty  was  attributed  to  his  adjustment
disorder.  Sleep disturbance is a very common  symptom  of  adjustment
disorder and depression and can be very  severe.  Disturbed  sleep  is
also a hallmark of obstructive sleep apnea syndrome (OSAS).  There was
concern raised by the applicant’s wife while he  was  on  active  duty
that he might have had OSAS  documented  in  a  3  Jun  99  psychiatry
appointment.  It  is  more  likely  than  not  that  his  subsequently
diagnosed OSAS did indeed exist while he was on active duty since  the
disorder typically develops gradually over a long period of time.  The
severity of his OSAS while he was on active duty cannot be ascertained
as his symptoms of sleep  disturbance  were  inextricably  intertwined
with his adjustment disorder.  Nor  can  it  be  determined  what  the
relative contributions to his symptoms of sleep disturbance were  from
his adjustment disorder versus OSAS.  OSAS patients typically  do  not
complain of disturbed sleep as they are sound  sleepers,  and  totally
unaware of events while sleeping.  People suffering sleep  disturbance
from adjustment disorder, stress related  conditions,  and  depression
are acutely aware of their insomnia.  Obstructive sleep apnea  is  the
result of relaxation of the muscles of  the  pharynx  (throat)  during
sleep that obstructs the normal flow of air during sleep  and  results
in decreased levels of oxygen and  increased  carbon  dioxide  in  the
blood.  It is a very common disorder, occurring more frequently in men
than women and is associated with obesity but  not  exclusively.   The
consequences of this disorder  include  excessive  daytime  sleepiness
(due to sleep fragmentation), physically restless sleep, night sweats,
morning  dry  mouth  or  sore  throat,  personality  change,   morning
confusion, intellectual impairment, impotence, and morning  headaches.
The most disabling symptom is loss of alertness during the  day.   One
of the symptoms is snoring, but not all who snore have  the  disorder.
Treatment of OSAS targets a number of contributing factors  and  often
includes weight loss, training the patient  to  sleep  on  their  side
(limiting airway  collapse),  and  use  of  a  device  that  maintains
positive air pressure in the pharynx (CPAP) and holds the airway open.
 CPAP is very successful in restoring normal sleep; however,  not  all
patients can tolerate wearing the device.  In cases not responsive  to
the above interventions, options include surgery to widen the pharynx,
or placement of an opening directly into  the  trachea  (tracheotomy),
which is kept covered (closed during the day) and  opened  for  sleep.
The fact that the applicant reported his  CPAP  did  not  improve  his
sleep symptoms, suggests those symptoms are due to his  mental  health
difficulties.  There was no documentation of  further  evaluations  of
his OSAS after the initial sleep study in Mar 00.  Many patients  with
this disorder have been  reported  to  have  concomitant  symptoms  of
depression and  anxiety,  but  OSAS  is  not  considered  a  cause  of
depression.  OSAS as a co-morbid condition can aggravate  symptoms  of
depression or adjustment disorder.  Use of  CPAP  for  the  OSAS  also
improves symptoms of depression and anxiety.

The  Medical  Consultant  indicated  that  in  spite  of  his  medical
problems, the applicant continued to perform well his military  duties
and meet Air Force physical fitness  standards.   Had  his  OSAS  been
diagnosed while on active duty, he would have been retained on  active
duty.  Although AFI 48-123, paragraph  A.2.2.1.4.,  lists  obstructive
sleep apnea requiring a CPAP device as a reason for medical review, in
practice, it has been rare that individuals  have  been  found  unfit.
Usually the CPAP device and other measures  are  effective  treatments
and active duty members with  OSAS  deploy  with  their  CPAP  device.
Further, the applicant was performing administrative duties and use of
a CPAP device would not interfere with the requirements  of  his  job.
Had the PEB been made aware of his OSAS at the time of his Jun 99 MEB,
he would have been returned to duty since there was no other  evidence
to show that the OSAS had rendered him unfit.   In  addition,  he  was
within his period of  presumption  of  fitness  with  his  anticipated
voluntary separation.  It is interesting  that  it  appears  that  the
applicant had not applied to the DVA for service  connection  for  his
OSAS as of Apr 01, a full year after diagnosis, even  though  the  DVA
issued him a CPAP device.  The Medical Consultant is  of  the  opinion
that the applicant should apply to the DVA for service connection  for
his OSAS, as there is reasonable evidence to support consideration for
service connection.

In the Medical Consultant’s view, the action and disposition  in  this
case were proper and equitable reflecting compliance  with  Air  Force
directives that implement the law.

A complete copy of the Medical Consultant’s evaluation is  at  Exhibit
C.

AFPC/DPPD recommended denial, indicating that although several medical
conditions were identified during his three MEBs, sleep apnea was  not
identified as one  of  his  problems  at  the  time.   His  adjustment
disorder with  depressed  mood  was  also  identified;  however,  this
condition is considered unsuiting rather than unfitting,  and  is  not
compensable or ratable under  military  disability  laws  and  policy.
Active duty members who  are  found  fit  for  duty  while  undergoing
disability processing do not have rebuttal rights under this program.

AFPC/DPPD indicated  that  standards  for  determining  unfitness  are
determined when a service  member’s  physical  defects  or  conditions
render them unfit to perform their military duties.  The mere presence
of a physical defect or condition does not  automatically  qualify  an
individual for disability  retirement  or  discharge.  Under  military
disability laws and policy, a service member shall be considered unfit
when the preponderance of evidence establishes that they are unable to
reasonably perform the duties of their office, grade, rank, or rating.
  The  military  disability   evaluation   system   only   compensates
individuals when medical conditions cause or contribute  to  an  early
career termination.  A member who continues  to  perform  his  or  her
duties right up until the  time  of  their  separation  or  retirement
creates a presumption that their medical condition has  not  shortened
their career.  Records reflect the applicant was reasonably capable of
performing his assigned military duties right up until the time of his
voluntary  separation  and  entry  into  the   Reserves.    Additional
testimony that he was capable of performing  his  military  duties  is
reflected in his performance reports which include the highest ratings
available.  His acceptance by the Air Force Reserve  also  shows  some
degree of his fitness at the time of his release from active duty.

AFPC/DPPD stated that medical conditions incurred while on active duty
that are not serious enough  to  cause  the  early  termination  of  a
military career are not compensated under Title 10, United States Code
(USC); however, veterans  may  be  compensated  for  service-connected
medical conditions under Title 38, USC, by the  DVA.   An  interesting
note concerning the veteran’s most current DVA rating decision,  dated
24 Apr 01, shows that he is not currently being rated for sleep  apnea
but primarily for his  adjustment  disorder  mixed  with  anxiety  and
depressed mood amongst other medical conditions.

Following their examination of  the  file,  AFPC/DPPD  indicated  they
determined that  the  applicant  was  treated  fairly  throughout  the
military disability evaluation process, that  he  was  properly  rated
under federal disability guidelines at the time  of  his  evaluations,
and that he was afforded full and  fair  hearings  as  required  under
military disability laws and policy.  Based  on  the  above  findings,
they are unaware of any reasons that would require that his records be
corrected to reflect he was awarded a permanent disability retirement.
The Medical Consultant extensively explained the  medical  aspects  of
the case in his advisory and they agree with his assessment.

In AFPC/DPPD’s view, the applicant has not submitted any  material  or
documentation to show he was unfit due to a physical disability  under
the provisions of Chapter 61, Title 10, USC and  AFI  36-3212  at  the
time  of  his  voluntary  release  from  active  duty  and  subsequent
assignment to the Air Force Reserve.

A complete copy of the AFPC/DPPD evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter, dated 5 Sep 02, the applicant’s wife provided  a  statement
in his behalf, with attachment, which is attached at Exhibit F.

In his response, dated 9 Sep 02, counsel indicated that both  advisory
opinions relied upon the notion that the applicant was fit for duty at
the time of separation and they disagree.  As they have  pointed  out,
the applicant was, in  fact,  unfit  for  duty  at  the  time  of  his
separation, and the sleep apnea which went unidentified as a causative
condition, rendering him  unfit,  further  demonstrated  their  point.
There was no evidence that the sleep disturbance was secondary to  the
adjustment disorder.  In fact, this is a full-blown diagnosis of sleep
apnea, requiring mechanical intervention for remediation.

According  to  counsel,  when  one  looked  at  the  totality  of  the
applicant’s physical condition upon separation, it was clear that  for
quite some time, he was, in fact,  unfit  for  duty.   The  orthopedic
problems, the psychiatric  problems,  and  the  sleep  apnea  combined
rendered him unfit for duty long before he was separated.  The  simple
truth is that if he had a commander who cared  about  him  instead  of
being biased against him, he  would  have  separated  with  a  medical
separation.  A review of his  record  demonstrated  that  he  was  not
performing well in his job prior to his separation.

In counsel’s view, the advisory opinions  demonstrated  that  the  Air
Force was falling all over itself in an effort to try  to  demonstrate
the correctness of earlier decisions,  but  it  was  inescapable  that
there were a constellation of physical problems  associated  with  the
applicant  which  cannot  be  ignored  and  which  under   any   other
circumstances would have resulted in a medical separation.

Counsel’s complete response is at Exhibit H.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find  the  applicant’s  assertions  or  the
documentation  presented  in  support  of  his   appeal   sufficiently
persuasive to override the rationale provided by the Air Force offices
of primary responsibility (OPR).  The evidence of record reflects that
the applicant resigned his commission as  an  Air  Force  officer  and
separated from active duty on 26 Jul 99.  We note that  subsequent  to
his separation from the Air Force, the applicant  was  diagnosed  with
obstructive sleep apnea.  He now requests that he be medically retired
from the Air Force as of the date of his  separation  on  26  Jul  99,
contending that he was suffering from the undiagnosed condition  while
on active duty which rendered him unfit for duty.  However, we find no
evidence which has shown to our satisfaction that  had  the  applicant
been diagnosed with sleep apnea prior to his separation from  the  Air
Force, he would have been found unfit to perform  the  duties  of  his
rank  and  office,  which  is,  by  law,  the  basis  for   disability
processing.   In  view  of  the  foregoing,  and  in  the  absence  of
sufficient evidence to the contrary, we adopt the Air Force  rationale
and conclude that the applicant has failed to sustain  his  burden  of
establishing that he has suffered either an  error  or  an  injustice.
Accordingly, we find no compelling basis  to  recommend  granting  the
relief sought in this application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of   the   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________



The following members of the Board considered AFBCMR Docket Number 02-
00939 in Executive Session on 7 Nov 02, under the provisions of AFI 36-
2603:

      Mr. Wayne R. Gracie, Panel Chair
      Mr. James W. Russell III, Member
      Mr. Thomas J. Topolski, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Dec 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 24 Jun 02.
    Exhibit D.  Letter, AFPC/DPPD, dated 22 Jul 02.
    Exhibit E.  Letter, SAF/MRBR, dated 26 Jul 02.
    Exhibit F.  Letter in applicant’s behalf, dated 5 Sep 02,
                w/atch.
    Exhibit G.  Letter, counsel, dated 9 Sep 02.




                                   WAYNE R. GRACIE
                                   Panel Chair