RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: air force

CASE NUMBER: PD0900213 COMPONENT: regular

BOARD DATE: 20090708 SEPARATION DATE: 20020612

________________________________________________________________

SUMMARY OF CASE: The covered individual (CI) was a Major Judge Advocate medically separated from the Air Force in 2006 after 12 years of service.

This CI presented in November 2000 with complaints of chronic fatigue. She had snoring without witnessed apneas. Her sleep was non-refreshing and she would remain fatigued even after 20 hours of sleep. She had insomnia and would wake several times each night. She had no cataplexy, hypnagogic hallucinations, sleep paralysis, or sleep attacks. She reported overwhelming fatigue which significantly limited her ability to work effectively. She was intermittently on a profile which limited her duty days to afternoons only. Other problems include vocal cord dysfunction and chronic aches involving her joints, muscles, and lower back. Bilateral knee pain felt to be due to early knee osteoarthritis responded well to glucosamine. Because of her vocal cord dysfunction, she was not able to engage in an aerobic exercise regimen but did occasional stretching exercises. She also complained of intermittent right temporal headaches, constipation, frequent sore throats, shortness of breath, cough, urinary frequency, memory loss, depression, tender glands, and sleep disturbance. She was positive for five of eighteen fibromyalgia tender points. Laboratory tests including CK, ESR, CSC, Chemistry, LFTs, and TSH were unremarkable. She suffered a thirty pound weight gain following a thirty day course of prednisone associated with unexplained anaphylactic shock in January 2000 but was normal weight before and after this event. She had several sleep studies which were consistent with upper airway resistance syndrome (UARS) and a trial of CPAP did improve her symptoms. However, she continued to have suboptimal daytime alertness. She also had a long history of treatment for hypothyroidism and was being treated for depression at the time of her separation.

Appropriate therapy failed to alleviate her fatigue and she was referred to the Air Force Physical Evaluation Board (PEB). The Informal PEB determined she was unfit for continued military service and she was then separated with a 20% disability for 6354-6399 Chronic fatigue associated with multiple medical problems: 1. Upper airway resistance on CPAP, 2. Hypothyroidism, and 3. Major depression in remission using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Air Force and Department of Defense regulations. The PEB also noted three additional conditions but determined they were not unfitting: 6516-6599 Vocal cord dysfunction, 7118 Angioedema, and 6522 Seasonal allergic rhinitis.

She appealed the decision of the Informal PEB to the Air Force Board for Correction of Military Records (BCMR) without a Formal PEB and asked that her discharge be changed to a disability retirement. The BCMR found insufficient evidence to demonstrate the existence of an error or injustice warranting her discharge be changed to a disability retirement.

Using an evaluation completed nine months after the time of separation from the Air Force, the Veterans Administration (VA) rated her disability as 6354 Chronic fatigue syndrome with upper airway resistance, angioedema, and vocal cord dysfunction at 20%. The VA rated 7903 Hypothyroidism at 10% and 9434 Major depression at 10% separately from the chronic fatigue. Combining these ratings with the chronic fatigue rating results in a 40% rating for the conditions the Air Force PEB determined were unfitting. The VA also rated 6522-6514 Allergic rhinitis at 10%; 9905 Temporomandibular joint syndrome at 20%; 5299-5260 Chronic left knee strain at 10%; and 7629 Endometriosis with chronic pelvic pain; 6099-6018 Allergic conjunctivitis, 7619 Removal of ovary, status post ectopic pregnancy, 7805 Keloid excision scars, and 7820-7825 Herpes simplex all at 0% for an initial combined rating of 60%. The rating for 9434 Major depression was later increased to 50% and a rating for 5099-5021 Myofascial pain syndrome of the posterior neck, trapezius, and rhomboid areas with cervical pain at 10% was added for a combined rating of 80% from 20061129.

The CI contends that there is a serious discrepancy between the USAF rating of 20% and the VA rating of 50% for the exact same conditions. (The VA actually rated these conditions at 40%; combining a 20% rating with three 10% ratings gives a combined rating of 40% but the CI would not be expected to know how to properly combine ratings.)

________________________________________________________________

BOARD FINDINGS: IAW DoDI 6040.44, the Board used the VASRD as the most favorable basis for rating. After careful consideration of all available information, the Board concluded by simple majority that the CI’s condition is appropriately rated at a combined rating of 40%. This rating derives from combining ratings of 20% for 6399-6354 Chronic fatigue (Upper airway resistance syndrome/sleep disordered breathing), 10% for 9434 Major depression using the VASRD general rating formula for mental illness, and 10% for 7903 Hypothyroidism.

The Board opined the CI’s fatigue is primarily due to uncontrolled UARS or sleep disordered breathing. Her fatigue is nearly constant and restricts her routine daily activities by less than 25% of her pre-illness level. She had several sleep studies done which were consistent with UARS. She did have one sleep study done in June 2001 that had no evidence of UARS but the literature states that patients with UARS usually have more subtle changes in breathing and do not usually have apnea. These more subtle changes are frequently missed on sleep studies. Esophageal manometry can be used to detect the subtle breathing changes with UARS and use of this was attempted. However, the CI could not tolerate the procedure and the testing was not completed. Key clinical features of UARS include presentations atypical for sleep apnea, including insomnia and long sleep onset latency, functional somatic complaints, and clinical exams often show craniofacial abnormalities. UARS patients do not have apnea, often complain of excessive daytime fatigue, have insomnia, and usually are not obese. Patients often report cold hands and feet. Literature also states that UARS is not infrequently misinterpreted as chronic fatigue syndrome, fibromyalgia, or psychiatric disorders.

The Board rated the CI’s fatigue analogous to 6354 Chronic fatigue syndrome because IAW VASRD paragraph 4.88 we cannot use VASRD code 6354 directly without excluding all other clinical conditions that may produce fatigue. The CI had both depression and hypothyroidism and both of these conditions can produce fatigue. The PEB rated hypothyroidism and major depression as an integral part of the CI’s disability and therefore determined these were unfitting conditions. However it is not appropriate to rate them as part of chronic fatigue because neither condition contributed to her fatigue. Her depression was not in remission but was controlled with medication as was her hypothyroidism and therefore both of these conditions were rated at 10%.

The Board also examined each of the other conditions rated by the VA and did not find any to be unfitting.

The single voter for dissent (recommended no recharacterization) elected not to submit a minority opinion.

________________________________________________________________

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 disability retirement, effective as of the date of her prior medical separation.

________________________________________________________________

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20090206, w/atchs.

Exhibit B. Service Treatment Record.

Exhibit C. Department of Veteran's Affairs Treatment Record.

President

Physical Disability Board of Review

SAF/MRB

1535 Command Drive, Suite E-302

Andrews AFB, MD 20762-7002

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2009-00213.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Administration Schedule for Rating Disabilities. Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly. The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP). Upon receipt of this letter, you must contact the Air Force Personnel Center at 1-800-531-7502 to make arrangements to obtain an SBP briefing prior to rendering an election. If a valid election is not received within 30 days from the date of the letter, you will not be enrolled in the SBP program. Unless at the time of your separation you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely

Director

Air Force Review Boards Agency

Attachment:

Record of Proceedings

cc:

SAF/MRBR

DFAS-IN