ADDENDUM TO

RECORD OF PROCEEDINGS

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: DOCKET NUMBER: BC-2003-00371

INDEX CODE: 108.02

XXXXXXXXXXXXXXXXXX COUNSEL: NONE

HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

He be returned to the active list and medically retired with a 100 percent disability rating and all of the benefits of a retiree, effective 25 August 2002.

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APPLICANT CONTENDS THAT:

The physician completed only one half of the examination which had a negative impact on his retired status. The physician did not do a sleep study, but offered additional surgery that offered no guarantees of positive results. Only partial weight was given to a doctor’s letter dated 4 January 2003, concerning the sleep study dated 17 May 2002. His severance pay has been fully recouped by the Department of Veterans Affairs (DVA).

In support of his appeal, he has submitted a copy of a 27 February 2008 letter from the DVA concerning his obstructive sleep apnea (OSA) history.

The applicant’s complete submission, with attachment, is at Exhibit H.

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STATEMENT OF FACTS:

For an accounting of the facts and circumstances surrounding the applicant’s separation, and the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit G.

On 4 January 2008, the applicant provided additional evidence and requested reconsideration of his application (Exhibit H).

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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends denial of the applicant’s request. The disability rating criteria for OSA differed greatly between the Department of Defense (DoD) under Department of Defense Instruction (DoDI) 1332.39, and the DVA under guidelines outlined in the VA Schedule for Rating Disabilities (VASRD) in effect at the time of the applicant’s separation from the military service. Specifically, disability ratings for OSA under DoD guidelines were based upon the impact of the condition relative to his civilian earning capacity, and followed a rating scheme of mild (0 percent), definite (30 percent), considerable (50 percent), and total (100 percent). On the other hand, disability ratings for OSA under VASRD guidelines fall under a different rating scheme; namely, for a documented sleep disorder with no symptoms (0 percent), persistent daytime hypersomnolence (30 percent), a requirement for a breathing device, such as a Continuous Positive Airway Pressure (CPAP) machine (50 percent), and with existing chronic respiratory failure or a requirement for a tracheostomy (100 percent). The record reflects the applicant’s OSA initially interfered with the performance of his military duties, as noted in the commander’s assessment letter dated 19 July 2000. The Informal Physical Evaluation Board (IPEB) found him unfit and determined that placement on the Temporary Disability Retired List (TDRL) with a 30 percent disability rating was the appropriate course of action. This was more than likely based collectively upon his persistent symptoms, despite the advanced treatment measures he received, its relative instability at the time, and the impact of the OSA upon his duty performance. However, upon reevaluation of his case by the IPEB following an initial period on the TDRL, a determination was made that his OSA had only a mild to minimal residual effect upon his civilian earning capacity. Thus, while acknowledging that under DVA guidelines, a 50 percent disability rating was awarded for the mere use of a CPAP device, a 0 percent disability rating was consistent with DoD rating guidelines in effect at the time of the final disposition of his case.

The 27 February 2008 letter from a DVA family physician which indicates the applicant’s OSA “did not improve nor stabilize from the onset [of] diagnosis by the military physician specialist on 13 March 2000 to [his] re-evaluation on 5 May 2002” is in conflict with statements entered into the record by the evaluating pulmonary medicine specialist on or about 25 March 2002, which read: “The patient currently uses CPAP at 13 cm water pressure (although later increased to 17 cm water pressure) and reports near complete resolution of his excessive daytime somnolence symptoms.” The pulmonary medicine specialist further stated the applicant “is doing well on CPAP” and “there [was] no need to remain on the TDRL from a sleep perspective.” A likely final determinant of the disposition of the applicant’s case by all previous boards resulted from a statement that he was “cleared for return to active duty, but [would not be] worldwide deployable and would require a P-4 Profile.” Therefore, absent objective evidence that reflects a more serious effect of the applicant’s OSA relative to his civilian earning capacity under DoD rating guidelines at the time of the IPEB decision, there is no error or injustice concerning the disability rating policies that implement the law.

The AFBCMR Medical Consultant’s complete evaluation is at Exhibit I.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant furnished additional information for the Board’s consideration, and his complete response, with attachments, is at Exhibit K.

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THE BOARD CONCLUDES THAT:

Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case, to include the statement from the DVA physician; however, we agree with the opinion and recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence that reflects a more serious effect of the applicant’s OSA relative to the DoD rating guidelines at the time of his separation, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the additional 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.

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The following members of the Board considered Docket Number BC-2003-00371 in Executive Session on 19 November 2008, under the provisions of AFI 36-2603:

Mr. Wayne R. Gracie, Panel Chair

Mr. Anthony P. Reardon, Member

Mr. James G. Neighbors, Member

The following documentary evidence was considered:

Exhibit G. Record of Proceedings, dated 13 Feb 04, w/atchs.

Exhibit H. DD Form 149, dated 4 Jan 08, w/atch.

Exhibit I. Letter, BCMR Medical Consultant, dated 5 Aug 08.

Exhibit J. Letter, SAF/MRBR, dated 8 Aug 08.

Exhibit K. Letter, Applicant, dated 3 Sep 08, w/atchs.

WAYNE R. GRACIE

Panel Chair