RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1200787 SEPARATION DATE: 20031020 

BOARD DATE: 20130206 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SPC/E-4 (88M10/Motor Vehicle Operators), medically 
separated for moderate to severe obstructive sleep apnea (OSA) requiring nightly use of a 
continuous positive airway pressure (CPAP) machine. The CI first sought treatment for 
complaints of daytime somnolence and witnessed apneic episodes at his Troop Medical Clinic 
on 4 November 2002. A polysomnogram revealed the presence of moderate to severe OSA in 
November 2002 and the member was subsequently started on CPAP. Despite otolaryngology 
and oral maxillofacial evaluations along with nightly use of the CPAP machine, the CI failed to 
meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical 
fitness standards. The CI was issued a permanent P3 profile and referred for a Medical 
Evaluation Board (MEB). The MEB forwarded moderate to severe OSA to the Physical 
Evaluation Board (PEB). The PEB adjudicated the moderate to severe OSA requiring nightly use 
of CPAP condition as unfitting, rated 0%, with application of the IAW AR 635-40 APPENDIX B-
107 PARA e. and Department of Defense Instruction (DoDI) 1332.39, E2.A1.2.21. The CI made 
no appeals, and he was medically separated with a 0% disability rating. 

 

 

CI CONTENTION: “Rated 50% by the VA but rated 0% by the Army. I was separated from 
service from the Army (Active Duty) and I had planned to make a career of military service. This 
became impossible since sue [sic] to being separated. I require the use of a CPAP machine to 
sleep and must have electric power when I sleep. This requires me to have a back-up generator 
at my house which I had to purchase at my own expense. I joined the Army in response to the 
terrorist attacks on September 11, 2001. I was 33 years old at the time and gave up a very good 
job to join the military as I am very patriotic and deeply love my country. I sacrificed the 
stability of my career with a company I had worked at for 5 years and gave up over 50% of my 
salary to join the Army. I had planned on making a career out of the military, but became 
disabled with Severe Obstructive Sleep Apnea during my time on active duty. After a lengthy 
medical review board, I was found unfit for service and was separated from the Army on 20 
October 2003. The MRB found me unfit for service but rated me zero percent disabled which 
does not make any sense. The VA rated me 50% disabled in 2003. To this day, and for the rest 
of my life I will have to sleep with a CPAP machine which requires me to have electricity 
whenever I sleep. This has affected my life as I was an avid outdoors person who regularly 
camped and enjoyed spending time in nature. I am unable to go camping anymore [sic] as I 
require electricity when I sleep. I also had to purchase a back-up generator for my house in the 
event of a power failure. I was not compensated for this expenditure. I am also impacted 
when I travel, as if the place where I am staying looses [sic] power and does not have a back-up 
generator, I am unable to sleep.” sic 

 

 

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 
6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined 
by the PEB to be specifically unfitting for continued military service; or, when requested by the 
CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings 
for unfitting conditions will be reviewed in all cases. The unfitting moderate to severe OSA 
requiring nightly use of CPAP condition meets the criteria prescribed in DoDI 6040.44 for Board 
purview; and, is addressed below, in addition to a review of the ratings for the unfitting 


condition. Any conditions or contention not requested in this application, or otherwise outside 
the Board’s defined scope of review, remain eligible for future consideration by the Army Board 
for Correction of Military Records. 

 

 

RATING COMPARISON: 

 

Service IPEB – Dated 20030818 

VA (~3 Months Pre-Separation) – All Effective Date 
20031021 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Moderate to Severe Obstructive Sleep Apnea 
Requiring Nightly Use of CPAP 

6847 

0% 

Obstructive Sleep Apnea 

6847 

50% 

20030707 

Combined: 0% 

Combined: 50% 



 

 

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application 
regarding the significant impairment with which his service-incurred condition continues to 
burden him. It is a fact, however, that the Disability Evaluation System (DES) has neither the 
role nor the authority to compensate members for anticipated future severity or potential 
complications of conditions resulting in medical separation. The Board’s authority as defined in 
DoDI 6040.44, resides in evaluating the fairness of DES fitness determinations and rating 
decisions for disability at the time of separation. The Board utilizes VA evidence proximal to 
separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval 
for special consideration to post-separation evidence. Post-separation evidence is probative 
only to the extent that it reasonably reflects the disability and fitness implications at the time of 
separation. 

 

Moderate To Severe Obstructive Sleep Apnea Requiring Nightly Use of CPAP Condition. The CI 
was seen in November 2002 for complaints of spouse witnessed apnea episodes three to four 
times nightly with gasping for air; struggling to breathe with snorting and awakening with a dry 
mouth, daytime somnolence; difficulty concentrating and memory problems due to lack of 
nighttime sleep; talking in his sleep; leg jerks; declining sex drive; depression and anxiety. The 
CI underwent a sleep study (Polysomnogram) in November 2002 which indicated a moderate to 
severe OSA syndrome evidenced by 227 obstructive apneas and 67 partial apneas along with an 
oxygen saturation range of 77% to 94% (normal 95%-100%) and an overall respiratory 
disturbance index of about 50 events per hour. The examiner opined that the CI would benefit 
significantly from CPAP titration. Because of throat abnormalities found on examination, the CI 
was referred to an otolaryngologist who determined that the CI was not a surgical candidate 
and recommended CPAP titration. The CI underwent a successful CPAP titration in January 
2003. The CI was granted a P3 Profile with restrictions of “must have access to CPAP machine 
every night.” The commander’s statement indicated that the CI’s OSA affected his abilities to 
perform his MOS on a daily basis. The CI required electricity wherever he went to use his CPAP 
machine nightly; he was unable to run for any extended distance. Additionally, due to his 
respiratory condition and low blood oxygen levels, he was unable to run for any extended 
distance and would get short of breath while doing even moderate exercise. The VA 
Compensation and Pension (C&P) examination that was 8 days prior to the MEB narrative 
summary (NARSUM) exam and 3 months prior to separation noted a persistent sleep apnea 
condition despite the nightly use of the CPAP machine. The CI continued to have persistent 
tiredness, fatigue, depression, memory loss, and lack of motivation, weight gain, low sex drive, 
poor physical condition, headaches, body aches, difficulty concentrating, irritability, and the 
need for a nap in the afternoon. The examiner documented that the CI’s condition resulted in 
10 hours per week of lost time from work for afternoon naps, and that although the “CPAP 
machine helped somewhat,” the CI would awaken at 3:00 or 4:00 am and would not be able to 
sleep with the CPAP machine on after that. There were abnormal physical findings of a 


redundant soft palatal and uvual tissue. A pulmonary function test (PFT) performed was 
normal. The NARSUM examination, completed 3 months prior to separation, indicated that the 
CPAP caused a significant improvement in symptoms but not a complete resolution. He 
continued to have occasional daytime somnolence and moodiness in addition to rare morning 
headaches. The CI was evaluated for potential surgery but two surgeons agreed that surgery 
was not indicated. Although the CI was able to complete his MOS duties of a truck driver, he 
was functionally impaired as he was considered unable to deploy or share barracks dwelling 
due to the lifetime need of the CPAP machine. 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
PEB and the VA chose the same disability code 6847 for OSA, however the PEB rated 0% and 
the VA rated 50%. The PEB assigned a 0% rating for mild industrial impairment under DODI 
1332.39 (E2.A1.2.21). Both the C&P exam and the NARSUM documented that although the CI 
used the CPAP machine on a nightly basis, the OSA symptoms did not completely resolve and 
he continued to have symptoms and require an afternoon nap. Contemporary PEBs across all 
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. After 
due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of 
reasonable doubt), the Board recommends a disability rating of 50% for the moderate to severe 
OSA requiring nightly use of CPAP condition. 

 

 

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 IAW AR 635-40 Appendix B-107 Para e. and DoDI 1332.39 for rating the moderate to 
severe OSA requiring nightly use of CPAP condition was operant in this case and the condition 
was adjudicated independently of that instruction by the Board. In the matter of the moderate 
to severe OSA requiring nightly use of CPAP condition, the Board unanimously recommends a 
disability rating of 50%, coded 6847 IAW VASRD §4.97. There were no other conditions within 
the Board’s scope of review for consideration. 

 

 

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 

Moderate to Severe Obstructive Sleep Apnea Requiring Nightly 
Use of CPAP 

6847 

50% 

COMBINED 

50% 



 

 

 


The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120607, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 xxxxxxxxxxxxxxxxxxxxxxx, DAF 

 Acting Director 

 Physical Disability Board of Review 

 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

(TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 

 

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation 

for xxxxxxxxxxxxxxxxxxx, AR20130004601 (PD201200787) 

 

 

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the 
enclosed recommendation of the Department of Defense Physical Disability Board of 
Review (DoD PDBR) pertaining to the individual named in the subject line above to 
recharacterize the individual’s separation as a permanent disability retirement with the 
combined disability rating of 50% effective the date of the individual’s original medical 
separation for disability with severance pay. 

 

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: 

 

 a. Providing a correction to the individual’s separation document showing that 
the individual was separated by reason of permanent disability retirement effective the 
date of the original medical separation for disability with severance pay. 

 

 b. Providing orders showing that the individual was retired with permanent 
disability effective the date of the original medical separation for disability with 
severance pay. 

 

 c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will 
account for recoupment of severance pay, and payment of permanent retired pay at 
50% effective the date of the original medical separation for disability with severance 
pay. 

 

 d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) 
and medical TRICARE retiree options. 

 

 

 

 

 

 

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 xxxxxxxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)