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AF | PDBR | CY2012 | PD2012 00905
Original file (PD2012 00905.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX          CASE : PD1200 905
BRANCH OF SERVICE: Army   BOARD DATE: 2014 0304
Separation Date: 20060420


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPT/0-3 (12A / E ngineer ) medically separated for obstructive sleep apnea (OSA). The CI was diagnosed with OSA in 2005. The OSA could not be adequately rehabilitated to meet the physical requirements of his M ilitary Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3 profile and referred for an initial Medical Evaluation Board (MEB) in September 2005, with a second MEB in January 2006 forwarding the same conditions and recommendations. The OSA condition, characterized as “OSA, severe,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. Both MEB’s also identified and forwarded three other conditions (see rating chart below) meeting retention standards for PEB adjudication. The initial PEB , in September 2005 , found the CI fit for duty. Subsequently, a letter from the CI’s c ommander indicating that he was not fit to perform his duties as a combat engineer officer because he was non-deployable, resulted in the second MEB and PEB. The second PEB adjudicated “OSA, requiring CPAP” as unfitting, rated 0% with application of Department of Def ense Instruction (DoDI) 1332.39. The second PEB adjudicated the hyperlipidemia, elevated transaminase/fatty liver and hypoparathyroidism as not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION : The CI writes: “Additional disabilities have been found supplemental to the original disability that caused my discharge”.


 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.

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RATING COMPARISON :
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Service IPEB – Dated 20060206
 VA - (6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
OSA 6847 0% OSA with Fatigue 6847 50% 20061017
Hyperlipidemia Not Unfitting No VA Entry
Hypoparathyroidism Not Unfitting History of Hypoparathyroidism 7903 0% 20061017
Elevated Transaminase/Fatty Liver Not Unfitting Fatty Liver Disease 7345 0% 20061017
No Additional MEB/PEB Entries
 Other x 1 20061017
Combined: 0%
 Combined: 60%
Derived from VA Rating Decision (VARD) dated 20061211 ( most proximate to date of separation [DOS]).


ANALYSIS SUMMARY : The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him , but must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs , operating under a different set of laws. The Board considers VA evidence proximate 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 to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

OSA Condition . The CI experienced a significant weight gain after redeployment and developed shortness of breath on exertion. In the process of being worked up by man y medical sub specialties he attended a group orientation which included a sleep questionnaire, sleep hygiene and nutrition . Based on a review of the questionnaire, it was determined that the CI had a high likelihood of sleep disordered breathing and he was sent directly for a polysomnogram (sleep study). During the sleep study, the CI experienced sleep disordered breathing and continuous positive airway pressure ( CPAP ) was initiated. The examiner diagnosed OSA with CPAP required. The CI was evaluated by ENT for a nasal obstruction as the cause of the OSA; however , the exam was normal and the specialist documented that there was a low possibility of a surgical cure for the OSA and recommended continued CPAP treatment. The CI reported to his internal medicine physician that he still experienced daytime somnolence and occasionally nodded off at work, fell asleep at a stop light and would fall asleep while watching television. The Internist noted in a memo to the Physical Disability Agency that the CI ’s symptoms of daytime somnolence worsened since the MEB was initiated, he had difficulty remaining alert and his endurance was greatly compromised. He was functionally impaired in that he could not run more than 50 meters without stopping and walking 2.3 miles took an hour. Although he used his CPAP machine nightly, he still had daily symptoms, he fell asleep at work one to two times per week and he would unintentionally fall asleep at home three to four times per week while reading. When there was a power failure and his CPAP machine was unavailable for 24 hour s, his symptoms became severe and he fell asleep while driving his POV the following day. The initial MEB n arrative s ummary (NARSUM) exam approximately 15 months prior to separation documented the sleep study demonstrated severe OSA and required CPAP. The examiner opined that the CI did not meet retention standards and required long term therapy with CPAP. The CI was given a permanent P3 p rofile for OSA with specific restrictions of duties related to the effects of the sleep apnea . The initial c ommander’s s tatement noted that the CI was not deployable because his treatment produced no significant increase in his physical abilities and he required a CPAP machine and to obtain 6 hours of uninterrupted sleep per night. The second c ommander’s s tatement reinforced what was written the first time. The second NARSUM exam approximately 3 months prior to separation provided no new information regarding the OSA. The CI continued to require CPAP for the severe OSA. T he VA Compensation and Pension exam approximately 6 months after to separation indicated that the CI continued on the CPAP and the daytime somnolence and snoring had remarkably improved about 80%. He also noted that activities at home were limited due to the CI’s fatigue particularly at the end of the day. The examiner diagnosed OSA, severe, improved with CPAP therapy.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the OSA as 6847 s leep a pnea s yndromes ( o bstructive, c entral, m ixed ) ( OSA) and rated at 0% in accordance with DoDI 1332.39. The VA coded the OSA with fatigue as 6847 and rated at 50%. The CI was diagnosed with severe OSA and required a CPAP machine at night for sleeping. The CI was profiled for the OSA with specific restrictions based on the effects caused by the sleep apnea. Both the MEB and the VA exams stated that the CI required and used CPAP for the severe OSA. All notes in the service treatment record proximate to separation indicated that the CI was compliant with his CPAP use. Contemporary PEBs across all s ervices 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 (reasonable doubt), the Board 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 the 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 disability rating of 50 %, coded 4847 IAW VASRD §4. 100 . 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
OSA 6847 5 0%
COMBINED 5 0%
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The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 120612 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record




                          
XXXXXXXXXXXXXXXXXX , DAF
President
Physical Disability Board of Review
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invalid font number 31502 SAMR-RB                                                                         
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MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 invalid font number 31502 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
invalid font number 31502 for XXXXXXXXXXXXXXXXXX invalid font number 31502 , AR20140013133 (PD201200905)

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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:


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Encl                                                  XXXXXXXXXXXXXXXXXX invalid font number 31502
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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