RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2008-01816
                                       INDEX CODE:  108.02
      xxxxxxxxxxxxxxx                   COUNSEL: MR. ROBERT LAUGHLIN
                                             HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His permanent disability rating be increased from 30% to 80%.

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APPLICANT CONTENDS THAT:

Counsel states the medical documentation shows that due to  the  applicant’s
Obstructive Sleep Apnea (OSA) he requires the use of a  continuous  positive
air pressure (CPAP) machine.  The  Secretary  of  the  Air  Force  Personnel
Council  found  the  applicant  only  qualified  for   30%   by   wrongfully
characterizing  the  applicant’s  OSA  as  depicting   “persistent   daytime
hypersomnolence,” which is contrary to the express definition of the  rating
code  in  the  Veterans  Administration  Schedule  for  Rating  Disabilities
(VASRD), which would require a 50% disability rating.  On  22  Apr  08,  the
Department of Veteran  Affairs  (DVA)  determined  the  applicant’s  overall
combined disability rating to be 100%.

In support of his request, applicant provides  counsel’s  brief,  copies  of
the DVA rating decision dated 1 Aug 07 and 17 Apr  08  and  other  documents
associated with his physical evaluation board.

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

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STATEMENT OF FACTS:

The applicant entered active  duty  on  15  Jul  85.   On  13  Dec  06,  his
commander  recommended  the  applicant  be  medically  retired  because   of
persistent  sleep  apnea  with  related  sinus  and  allergy  problems  that
hindered his ability to get restful sleep at night,  which  in  turn  caused
him to be fatigued and exhausted during the duty day.  A Medical  Evaluation
Board (MEB) found  the  applicant  unfit  due  to  diagnosis  of  paroxysmal
supraventricular tachycardia (PSVT) sleep apnea and  referred  his  case  to
the Informal Physical Evaluation Board (IPEB).  The IPEB findings,  dated  7
Feb 07, indicated they found the applicant had  a  compensable  and  ratable
condition of OSA, controlled with CPAP and recommended a  disability  rating
of 0%.  On 13 Feb 07, the applicant disagreed with  the  IPEB  findings  and
recommendation  and  requested  a  formal  hearing.   The  Formal   Physical
Evaluation Board (FPEB) findings, dated 20 Mar 07, indicated a diagnosis  of
allergic  rhinitis  and  OSA,  controlled  with  CPAP;  and  conditions  not
currently compensable or ratable of PSVT,  gastroesophageal  reflux  disease
and hiatal hernia.  The FPEB  recommended  permanent  disability  retirement
with a 10% disability rating.  On 30 Mar 07, the applicant appealed  to  the
Secretary of the Air Force (SAFPC) disagreeing with the  FPEB  findings  and
recommendation and requested a permanent retirement with an  80%  disability
rating.  On 2 May 07, SAFPC found the applicant unfit for his  condition  of
OSA, with  persistent  daytime  hypersomnolence,  associated  with  allergic
rhinitis rated at 30% disabling; and conditions not compensable  or  ratable
of PSVT, gastroesophageal reflux disease and hiatal hernia.  On 18  Jun  07,
the applicant was relieved  from  active  duty  and  permanently  disability
retired effective 19 Jun 07  with  a  combined  compensable  percentage  for
disability of 30%.  He served 21 years, 11 months,  and  4  days  of  active
duty.

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AIR FORCE EVALUATIONS:

HQ AFPC/DPSD recommends denial.  DPSD states the Department of  Defense  and
the DVA disability evaluation systems operate under  separate  laws.   Under
Title 10, USC, Physical Evaluation  Boards  must  determine  if  a  member’s
condition renders them unfit for  continued  military  service  relating  to
their office, grade, rank or rating.  The fact that  a  person  may  have  a
medical condition  does  not  mean  that  the  condition  is  unfitting  for
continued military service.  To be unfitting, the  condition  must  be  such
that it alone precludes the member from fulfilling  their  military  duties.
If the board renders a  finding  of  unfit,  the  law  provides  appropriate
compensation due to the premature termination of their career.   It  is  the
charge of the DVA to pick up where the Air Force must, by  law,  leave  off.
Under Title 38, the DVA may rate any service-connected condition based  upon
future employability or reevaluate based on changes in  the  severity  of  a
condition.  This often results in different ratings  by  the  two  agencies.
The AFPC/DPSD complete evaluation is at Exhibit C.

The BCMR Medical Consultant recommends alternatively changing the record  to
reflect a medical retirement with the award of a 50% disability  rating  for
the applicant’s OSA.  The BCMR Medical Consultant states  unlike  the  VASRD
rating criteria the ratings are based  upon  the  level  of  industrial,  or
occupational,  impairment.   While  these  are  vulnerable  for   subjective
interpretation, a mild level of impairment  rates  0%,  definite  impairment
rates 30%, considerable impairment rates 50%, and  total  impairments  rates
100%.   It  is  likely  then,  that  the  FPEB  and  the   SAFPC   had   the
aforementioned criteria in mind when applying the  “0%”  disability  rating,
in the case of the former, and the  “30%”  rating  awarded  by  the  latter.
However, instead of justifying the 30% rating  under  “definite”  industrial
impairment” criterion,” the SAFPC utilized the VASRD criterion,  “persistent
daytime hypersomnolence,” to depict the level of severity;  while  appearing
to ignore the  fact  that  the  applicant  required  a  CPAP  device,  which
otherwise warrants a 50% disability rating.   The  BCMR  Medical  Consultant
also finds it appropriate to associate the  applicant’s  allergic  rhinitis,
utilizing a hyphenated disability rating code, as a recognition that  it  is
the coexistence of this co-morbid disorder  that  rendered  the  applicant’s
OSA unfitting and which cut his career short; while also acknowledging  that
neither allergic rhinitis nor sinusitis, alone, would have  been  unfitting,
but not for the applicant’s OSA.  The  BCMR  Medical  Consultant’s  complete
evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In  response  to  the  AFPC/DPSD  evaluation,  counsel  responds  that   the
applicant’s rating has to be based on the rating criteria, in  other  words,
the DVA rating chart, rather than pulling a percentage of out thin  air  and
applying it to the applicant’s case.  A total rating  of  30%  is  arbitrary
and capricious and is not based on applicable regulations and rating  chart.
 At the very least, the AFBCMR should award the applicant a  60%  disability
rating. The counsel’s complete letter is at Exhibit E.

In response to the BCMR  Medical  Consultant’s  evaluation,  counsel  writes
that while the applicant agrees with the recommendation of the BCMR  Medical
Consultant to increase his  OSA  to  50%,  he  still  believes  that  he  is
entitled to a separate 10% rating for allergic rhinitis, which was found  to
be unfitting and awarded to him by the FPEB and an award  of  at  least  10%
for his  PSVT.   The  applicant  contends  that  both  of  these  conditions
contributed to the end of his military career and as  such  should  both  be
found “unfitting” and subject to a minimal compensation of 10% for  a  total
evaluation of 70%.  The counsel’s complete letter is at Exhibit H.

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THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of  an  error  or  injustice  warranting  partial  relief.   After
carefully reviewing the evidence of record, we agree with the  BCMR  Medical
Consultant that it  appears  the  applicant’s  condition  was  not  properly
characterized according to the level of severity  of  the  applicant's  OSA.
Therefore, we believe that a change in his records is warranted  to  reflect
a 50% disability rating at the time of final disposition of his case.   With
regard to counsel's contention that the applicant's allergic rhinitis  is  a
separate disabling condition and as such  should  be  rated  separately,  we
note  the  BCMR  Medical  Consultant's  recommendation  that  it  would   be
appropriate to associate the  applicant's  allergic  rhinitis,  utilizing  a
hyphenated disability rating code as recognition that it is the  coexistence
of this co-morbid disorder that rendered the applicant's OSA unfitting.   We
agree with his recommendation.

4.  Insufficient relevant has been presented to  demonstrate  the  existence
of error or injustice  with  regard  to  the  applicant's  PSVT.   We  noted
counsel's contentions and defer to the evidence of record which  shows  that
this condition alone was not found unfitting by  the  disability  evaluation
system and that this condition was  well  controlled  with  medication.   We
note that, subsequent to the applicant's separation, his PSVT condition  was
evaluated by the DVA and  he  was  granted  service  connection  and  a  10%
compensable rating.  But, we are constrained to note  that  while,  by  law,
the Department of Defense rates disabilities solely based  on  their  impact
on the member’s ability  to  perform  his  or  her  duties,  the  DVA  rates
disabilities based on their impact on social  and  industrial  adaptability.
In view of the above and in  the  absence  of  persuasive  evidence  by  the
applicant that successfully refutes the information in his record;  we  find
no basis to recommend relief on this portion of his request.

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THE BOARD DETERMINES THAT:

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

      a.  On 18 June 2007, he was found unfit to perform the duties  of  his
office, rank, grade, or rating by reason of  physical  disability,  incurred
while he was entitled to receive basic pay; that the diagnosis in  his  case
was Obstructive Sleep Apnea-Allergic Rhinitis, VASRD code  6847-6522,  rated
at 50%; that the degree of impairment was  permanent;  that  the  disability
was  not  due  to  intentional  misconduct  or  willful  neglect;  that  the
disability was not incurred during a period  of  unauthorized  absence;  and
that the disability was not received in the line of duty as a direct  result
of armed conflict or caused by an instrumentality of war.

      b.  On 19 June 2007, he was retired by reason of  physical  disability
under the provisions of AFI 36-3212.

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The following members of the Board considered  Docket  Number  BC-2008-01816
in Executive Session on 11 Dec 08, under the provisions of AFI 36-2603:

                 Mr. Gregory A. Parker, Panel Chair
                 Ms. Janet I. Hassan, Member
                 Mr. Anthony P. Reardon, Member

All members voted to correct the  records  as  recommended.   The  following
documentary  evidence  pertaining  to  Docket   Number   BC-2008-01816   was
considered:

   Exhibit A.  DD Form 149, dated 8 May 08, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPSD, dated 12 Jun 08.
   Exhibit D.  Letter, SAF/MRBR, dated 25 Jul 08.
   Exhibit E.  Letter, Counsel, dated 19 Aug 08.
   Exhibit F.  Letter, BCMR Medical Consultant, dated 6 Oct 08.
   Exhibit G.  Letter, SAF/MRBR, dated 7 Oct 08.
   Exhibit H.  Letter, Applicant, dated 31 Oct 08.





                       GREGORY A. PARKER
                       Panel Chair