RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:
      BRANCH OF SERVICE:  Army
CASE  NUMBER:   PD1100768                                         SEPARATION
DATE:  20041010
BOARD DATE:  20120209


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was an active duty SGT/E-5  (92G,
Food Service Specialist), medically separated for  obstructive  sleep  apnea
(OSA).  The CI  was  seen  by  the  pulmonary  clinic,  diagnosed  with  OSA
requiring use of  a  breathing  assistance  device  with  continuous  airway
pressure (CPAP).  His treatment with CPAP was successful and he was able  to
fully function in garrison; however, he was  not  deployable  and  therefore
underwent a Medical Evaluation  Board  (MEB).   OSA  was  forwarded  to  the
Physical Evaluation Board (PEB) as medically  unacceptable  IAW  AR  40-501.
No other conditions appeared on  the  MEB’s  submission.   Other  conditions
included in the Disability Evaluation System (DES) packet will be  discussed
below.  The PEB adjudicated the OSA condition as unfitting, rated  0%;  with
application of DoDI 1332.39.  The CI made  no  appeals,  and  was  medically
separated with a 0% combined disability rating.


CI CONTENTION:  The CI states:  “After deployment from Iraq I was  diagnosed
with Chronic Obstructive Sleep Apnea which deemed me  physically  unfit  for
Army Retention standards according to PEB proceedings, but I  was  rated  by
the VA 50% in which I am  still  being  treated  for  w/CPAP  machine.”   He
mentions no additionally contended conditions.


RATING COMPARISON:

|Service IPEB – Dated 20040505  |VA (1 Mo. After-Separation) – All       |
|                               |Effective Date 20041011                 |
|Condition                      |Code                            |Rating |
|Combined:  0%                  |Combined:  70%                          |


* VA rating based on exam most proximate to date of permanent separation.


ANALYSIS SUMMARY:

Obustructive Sleep Apnea.  CI’s symptoms regarding  this  condition  started
in or about June 2003.  He  was  diagnosed,  via  sleep  studies,  with  OSA
requiring use of  a  breathing  assistance  device  with  continuous  airway
pressure (CPAP).  He was issued a CPAP machine that he  was/is  required  to
use indefinitely at night.  The use of CPAP did  not  appear  to  completely
resolve his symptoms of daytime sleepiness, and although the CI was able  to
function in garrison, he was unable to  deploy  to  field  conditions.   The
PEB’s DA Form 199 assigned a 0% rating under DODI 1332.39 (E2.A1.2.21),  and
based the fitness adjudication solely on field impediments  to  the  use  of
CPAP.  Contemporary PEBs across all of the services no longer  consider  OSA
to be unfitting solely on this basis, but the Board, by  legal  opinion  and
firm  precedent,  does  not  make  contrary   recommendations   to   a   PEB
determination that a  condition  was  unfitting.   VASRD  §4.97  mandates  a
minimum rating of 50% under 6847 for OSA requiring  a  breathing  assistance
device.  In consideration of this evidence, and IAW DoDI 6040.44, the  Board
must recommend a separation rating of 50% for the OSA condition.


Remaining Conditions.  Other conditions identified  in  the  DES  file  were
foot condition, bunions, knee pain, upper back pain, chest pain,  sinusitis,
asthma  and  hypertension.   Several  additional  non-acute  conditions   or
medical complaints were also documented.   None  of  these  conditions  were
clinically  or  occupationally  significant  during  the  MEB  period,  none
carried attached profiles, and  none  were  implicated  in  the  commander’s
statement.  These  conditions  were  reviewed  by  the  action  officer  and
considered by the Board.  It was determined that none  could  be  argued  as
unfitting and subject  to  separation  rating.   No  other  conditions  were
service connected with a compensable rating by the VA within  12  months  of
separation or contended by the CI.  The Board therefore  has  no  reasonable
basis for recommending any additional unfitting  conditions  for  separation
rating.


BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military  Department
regulations or guidelines relied upon by the PEB will not be  considered  by
the Board to the extent they were inconsistent with the VASRD in  effect  at
the time of the adjudication.  As discussed  above,  PEB  reliance  on  DoDI
1332.39 for rating OSA was operant  in  this  case  and  the  condition  was
adjudicated independently of that instruction by the Board.  In  the  matter
of the obsutructive sleep apnea condition, the Board  unanimously  recommend
a permanent service disability rating of 50%, coded 6847  IAW  VASRD  §4.97.
The Board unanimously agrees that there were no  other  conditions  eligible
for  Board  consideration  which  could  be  recommended   as   additionally
unfitting for rating at separation.


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

|UNFITTING CONDITION                              |VASRD CODE  |RATING  |
|Obstructive Sleep Apnea                          |6847        |50%     |
|COMBINED    |50%     |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110822, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record


                 President
                 Physical Disability Board of Review
SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency


SUBJECT:   Department  of  Defense  Physical  Disability  Board  of   Review
Recommendation



1.  I have reviewed the enclosed Department of Defense  Physical  Disability
Board  of  Review  (DoD  PDBR)  recommendation  and  record  of  proceedings
pertaining to the subject individual.  Under  the  authority  of  Title  10,
United States Code, section 1554a,   I accept the Board’s recommendation  to
modify the individual’s disability rating to 10% without  recharacterization
of the individual’s separation.  This decision is final.

2.  I direct that all the Department of the Army records of  the  individual
concerned be corrected accordingly no later than 120 days from the  date  of
this memorandum.

3.  I request that a copy of the corrections and any related  correspondence
be provided to the individual concerned, counsel (if any),  any  Members  of
Congress who have shown interest, and to the Army Review Boards Agency  with
a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:




Encl
      Deputy Assistant Secretary
       (Army Review Boards)