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AF | PDBR | CY2012 | PD2012 00432
Original file (PD2012 00432.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1200432
BRANCH OF SERVICE: Army  BOARD DATE: 20130716
SEPARATION DATE: 20050308


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (19K/Armor Crewman) medically separated for obstructive sleep apnea (OSA). The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3/L2 profile and referred for a Medical Evaluation Board (MEB). The OSA and breathing related sleep disorder conditions, characterized as medically unfit was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB adjudicated OSA as unfitting, rated 0%. The remaining conditions were combined with OSA . The CI made no appeals and was medically separated.


CI CONTENTION: “0% rating from Military Board for obstructive Sleep Apnea with CPAP (BiPap), does not coincide with 50% rating from Department of Veterans Affairs Schedular”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting OSA condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20041202
 VA - (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Obstructive Sleep Apnea 6847 0% Obstructive Sleep Apnea 6847 50% 20050110
No Additional MEB/PEB Entries
 Other x 3 20050110
Combined: 0%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 50518 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Obstructive Sleep Apnea: Commander’s statement on 5 October 2004 remarked that the CI’s sleep apnea condition prevented him for getting adequate amount of quality sleep leading to degraded level of production during the day, showing up late for formation, and frequent fatigue, which could lead to accidents and injury. He had been performing an alternate clerical MOS as a night shift NCO at a tactical operations center. His profiled limitations were P3 with access to continuous positive airway pressure at all times. The MEB addendum on 18 October 2004, 5 months prior to separation, reported the CI had in excess of fifty counseling statements throughout his military career for over sleeping and lateness for duty. He was diagnosed with sleep apnea in 2001 while being treated for depression. While at the time of his addendum there were no psychiatric disorders, the sleep disturbance was sufficient to cause severe impairment in his occupational and social functioning. The narrative summary on 5 November 2004, 4 months prior to separation, notes the CI had a history of sleep apnea. The CI was being treated with bi-level positive airway pressure (BiPAP) since July 2004 and compliant with medical treatment. He complained of trouble functioning in the morning. Heart, ears, nose, throat, and lung examination were normal. At the VA Compensation and Pension exam performed 4 months prior to separation on 10 November 2005, the CI reported he was on BiPAP machine. Heart, ears, nose, throat, and lung examinations were normal.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 0% rating for OSA was derived from DODI 1332.39, premising its fitness determination on impediments from the use of BiPAP; but IAW DoDI 6040.44, the Board’s recommendation must be derived from the Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD §4.100 mandates a minimum rating of 50% for OSA requiring a breathing assistance device; and, the evidence establishes that the latter criterion was met in this case. In consideration of these facts, the Board unanimously recommends a disability rating of 50% for the OSA 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 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 OSA condition, the Board unanimously recommends a permanent disability rating of 50%, coded 6847 IAW VASRD §4.97. The Board unanimously agrees that there were no other conditions eligible for Board consideration that 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 20120510, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review


 Accept Grant
SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130018757 (PD201200432)
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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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