RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00371
                                    (Case 2)
            INDEX CODE:  108.02

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His original disability rating for sleep apnea  be  reinstated  to  30
percent and that his retired status be restored.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The decision to remove him from the Temporary Disability Retired  List
(TDRL) was in error.  In February 2002, during his TDRL  reevaluation,
there was no sleep study performed as requested.  The  formal  medical
board misinterpreted Dr. xxxx’ (Medical  Director,  HealthSouth  Sleep
Disorders Center)  note  and  rated  him  at  zero  percent.   He  was
considered cured, but when  you  read  the  doctor’s  4  January  2003
letter, this is not the case.  He has  used  the  Continuous  Positive
Airway Pressure (CPAP) machine since March 2000 and will continue  for
the rest of his life.

In support of his request, the applicant submits a personal statement,
a letter from Dr. xxx, with a 17 May 2002 reevaluation, and an extract
from the Veterans  Administration  Schedule  for  Rating  Disabilities
(VASRD).  The applicant’s complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
11 August 1987.  He was progressively promoted to the grade  of  staff
sergeant (E-5), with an effective date of rank of 1 October 1996.

A Medical Evaluation Board (MEB) was convened on 15  August  2000  and
their diagnosis and findings were:  (1) Obstructive Sleep Apnea (OSA),
severe, on CPAP at 13 cm H20; declines  further  surgery,  with  March
2000 as the approximate date of origin.   (2)  Obesity  height  70”  -
weight - 224 lbs.  (3) Degenerative Disk Disease  of  cervical  spine,
with C7 radiculopathy of left arm, with May 2000  as  the  approximate
date of origin.  The MEB recommended referral to the Informal Physical
Evaluation Board (IPEB).

On 25 August  2000,  an  Informal  Physical  Evaluation  Board  (IPEB)
convened and established a diagnosis of  OSA  (30  percent  disability
rating) and Degenerative Disk Disease (ten percent disability rating).
 Other diagnosis considered but not ratable was a history of  obesity.
The IPEB found the applicant unfit because of physical disability  and
recommended temporary retirement with a compensable disability  rating
of 40 percent.  On 6 September 2000, the  applicant  agreed  with  the
findings and recommended disposition of the IPEB and waived his  right
to a Formal PEB (FPEB).

On 13 November 2000, the applicant was released from active duty  and,
effective 14 November 2000, his  name  was  placed  on  the  Temporary
Disability Retired List (TDRL) in the retired pay grade of E-5, with a
compensable percentage of 40 percent for physical disability.  He  was
credited with 13 years, 3 months and 2 days of service for  basic  pay
and active service for retirement.

The applicant received TDRL  re-examinations  at  Lackland  AFB.   The
medical summaries of his examinations were presented to the  IPEB  who
established a diagnosis of:  (1) Chronic neck pain associated with C-7
radiculopathy of left arm, with a ten percent disability rating;  and,
(2) Obstructive sleep apnea, with a zero  percent  disability  rating.
The IPEB further recommended, on 8 April 2002, that he  be  discharged
with severance pay, with a ten percent compensable disability  rating.
The applicant disagreed with this  finding  and  requested  appearance
before the FPEB.

On 20 June 2002, the  applicant  appeared  before  a  Formal  Physical
Evaluation Board (FPEB).  The FPEB found  the  testimony  and  medical
evidence to support the findings and recommendations of the IPEB; that
the applicant’s sleep apnea is appropriately rated  at  zero  percent.
The FPEB found the applicant unfit because of physical disability  and
recommended discharge with severance pay, with a compensable rating of
ten percent.  On 20  June  2002,  the  applicant  disagreed  with  the
findings and recommended disposition  of  the  FPEB  and  submitted  a
rebuttal to the Secretary of the Air Force Personnel Council  (SAFPC),
dated 3 July 2002.

After considering the applicant’s rebuttal letter,  with  attachments,
the evidence and testimony presented before the FPEB, IPEB,  the  TDRL
evaluation, service medical records and the medical summary leading to
the MEB, SAFPC concurred with the recommendations of both the IPEB and
FPEB for a disposition  of  separation  with  severance  pay,  with  a
combined disability rating  of  ten  percent.   Officials  within  the
Office of the Secretary of the Air Force directed that  the  applicant
be discharged with entitlement to disability  severance  pay,  with  a
disability rating of ten percent.  On 25 August 2002, the  applicant’s
name was removed from the TDRL and he was discharged in the  grade  of
staff sergeant (E-5), with entitlement to  disability  severance  pay.
He was credited with 13 years, 3 months and  2  days  of  service  for
severance pay.

Information extracted  from  applicant’s  military  personnel  records
indicate that, on 24 July 2001, the  Department  of  Veterans  Affairs
granted the applicant a 50 percent  disability  rating,  effective  14
November 2002, the date following his release from active duty.
_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant  recommends  the  application  be  denied.
Obstructive Sleep Apnea (OSA) 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.  The applicant argues that  the
Air Force Physical Evaluation  Boards  did  not  follow  the  Veterans
Administration Schedule for Rating Disabilities (VASRD) in rating  his
Obstructive Sleep Apnea.  The BCMR Medical Consultant  indicates  that
the DoD uses the VASRD as a guideline in rating  unfitting  conditions
for disability compensation.  However, the DoD does not use the  VASRD
for  rating  OSA.   DoD  Instruction  1332.39,  paragraph  E2.A1.2.21,
directs  that  Sleep  Apnea  Syndromes  (VASRD  6847)  will  be  rated
corresponding to assessed levels of disability  relative  to  civilian
earning capacity and not according  to  the  criteria  listed  in  the
VASRD.  The following interpretation applies  in  the  DoD  Disability
System:   Mild  industrial  impairment  -   zero   percent;   Definite
industrial impairment - 30 percent; considerable industrial impairment
- 50 percent; and, total industrial impairment - 100 percent.

The BCMR Medical Consultant states that although,  like  many  members
with OSA who are allowed to  remain  on  active  duty,  the  applicant
demonstrated excellent  response  to  the  application  of  CPAP,  his
underlying OSA was still  severe  enough  to  require  restriction  on
deployment.   There  appears  to  be  no  clinical  reason,  based  on
objective findings of sleep studies, why the applicant should have any
more than mild impairment of civilian employment with the use  of  the
CPAP device.  The Physical Evaluation Boards, based on the applicant’s
report to the pulmonary specialist of near complete symptom resolution
supported by the objective results of sleep studies concluded that the
applicant rated zero percent in accordance with DoD policy  on  rating
sleep apnea syndromes.  The requirement for use of CPAP device is  not
sufficient  grounds  to  apply  any  disability  rating  in  the   DoD
disability system since many  patients  experience  control  of  their
condition that allows full functioning.

The  BCMR  Medical  Consultant  points  out  that  another  issue  not
explicitly addressed by the boards is the fact that the applicant  has
not reduced his weight back to his ideal body weight.   Based  on  the
temporal relationship of onset of his symptoms with his  weight  gain,
the BCMR Medical Consultant  opines  that  the  applicant’s  condition
would very significantly improve if he were able to bring  his  weight
back within Air Force standards.  The BCMR Medical Consultant  concurs
with the decisions of the previous boards.  Action and disposition  in
this case are proper and  equitable  reflecting  compliance  with  Air
Force  directives  that  implement  the  law.   The   AFBCMR   Medical
Consultant’s evaluation is at Exhibit C.


HQ AFPC/DPPD recommends the application be denied.  DPPD  states  that
the Physical Evaluation Board’s (PEB) responsibility is  to  determine
if a  service  member’s  medical  condition  renders  them  unfit  for
continued military service.  The preponderance  of  evidence  provided
during the MEB/PEB process appears to justify the outcome of the final
disposition.  This is  confirmed  in  the  BCMR  Medical  Consultant’s
advisory opinion.  In the applicant’s case, both the Informal Physical
Evaluation Board (IPEB)  and  the  Formal  Physical  Evaluation  Board
(FPEB) determined a  zero  percent  rating  was  appropriate  for  his
Obstructive Sleep Apnea (OSA) due to medical data presented  from  the
TDRL re-examination, which cleared him to return to active  duty  (not
worldwide deployable).  Veterans who acquire service-connected medical
conditions  are  authorized  compensation  and  treatment   from   the
Department of Veterans Affairs  (DVA)  once  they  are  released  from
active duty under Title 38, USC.

Following DPPD’s assessment, they conclude the applicant  was  treated
fairly throughout the  military  Disability  Evaluation  System  (DES)
process,  that  he  was  properly  rated  under   federal   disability
guidelines at the time of his evaluation, and that he was afforded the
opportunity for further review as provided by federal law and  policy.
DPPD finds no injustice or inaccuracies  during  the  MEB/PEB  process
that would warrant reinstating the applicant’s original OSA disability
rating or why  the  1  August  2002  Secretarial  decision  should  be
overturned.  They agree with the BCMR Medical Consultant’s  assessment
of the case.  In addition, the applicant has not  provided  sufficient
documentation to indicate a bias or error took place at  the  time  of
his process through the Air Force DES.  The HQ AFPC/DPPD evaluation is
at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant  on  1
August 2003 for review and response.  As of this date, no response has
been received by this office (Exhibit E).
_________________________________________________________________

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.  After careful  consideration  of
applicant’s request and the available evidence of  record,  the  Board
majority finds insufficient evidence of error or injustice to  warrant
corrective action.  It is the opinion of the Board majority  that  the
evidence of  record  reflects  the  applicant’s  disability  case  was
properly   evaluated,   appropriately   rated   and   received    full
consideration under the applicable Air Force instructions.  All levels
of review, during and subsequent to his TDRL reevaluation,  considered
the entire medical record and determined  the  degree  of  applicant’s
medical condition, with the appropriate  compensable  rating  of  zero
percent for sleep apnea.  The Board majority  noted  that,  in  rating
Obstructive Sleep Apnea  (OSA),  the  implementing  guidance  for  the
military departments is DoD Instruction 1332.39,  which  contains  the
rating and  disposition  guide  to  be  used  in  cases  such  as  the
applicant’s, not  the  Veterans  Administration  Schedule  for  Rating
Disabilities (VASRD).  The Board majority noted the  sleep  study  the
applicant provided from a civilian  sleep  lab,  dated  17  May  2002,
confirmed the applicant having severe OSA with “excellent response” to
treatment with a nasal  Continuous  Positive  Airway  Pressure  (CPAP)
device; and, that the specialist recommended continued use of the CPAP
device and weight loss.   As  the  AFBCMR  Medical  Consultant  stated
“there appears to be no clinical reason, based on  objective  findings
of sleep studies, why the applicant should have  any  more  than  mild
impairment of civilian employment with the use of  the  CPAP  device.”
The Board majority opines that the applicant  has  failed  to  provide
substantiating evidence indicating that the zero  percent  compensable
rating for OSA, at the time of his discharge from the Air  Force,  was
in error or unjust, that he was  misdiagnosed  by  Air  Force  medical
personnel, or that his case was not  processed  properly.   The  Board
majority therefore agrees with the opinions and recommendations of the
respective Air Force offices and adopts the rationale expressed as the
basis for their conclusion that the applicant has failed to show  that
the assigned rating was contrary to  the  governing  directive,  which
implements the law.  In view of the foregoing and absent  evidence  to
the  contrary,  the  Board  majority  finds  no  compelling  basis  to
recommend granting the relief sought in this application.
_________________________________________________________________

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  this  application  in
Executive Session on 25 September 2003, under the provisions of AFI 36-
2603:

                  Mr. Robert S. Boyd, Panel Chair
                  Ms. Martha J. Evans, Member
                  Mr. James E. Short, Member

By a majority vote, the members voted to deny applicant's request.   Mr.
Short voted to grant the applicant's request and  submitted  a  minority
report.  The following documentary evidence was considered in connection
with AFBCMR Docket Number BC-2003-00371.

   Exhibit A.  DD Form 149, dated 29 Jan 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, BCMR Medical Consultant, dated 24 Jun 03.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 28 Jul 03.
   Exhibit E.  Letter, SAF/MRBR, dated 1 Aug 03.
   Exhibit F.  Minority Report.




                                   ROBERT S. BOYD
                                   Panel Chair



AFBCMR BC-2003-000371




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
            CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                                         JOE G.
LINEBERGER
                                                         Director
                                                         Air Force
Review Boards Agency