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AF | PDBR | CY2012 | PD2012 01169
Original file (PD2012 01169.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD1201169
BRANCH OF SERVICE: Army  BOARD DATE: 20130911
SEPARATION DATE: 20040319


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reservist SPC/E-4 (92/Shower, Laundry and Clothing Repair Specialist) medically separated for keratoconus in each eye and sleep apnea. The CI was returned from Iraq in 2003 due to his reduced vision, and subsequently diagnosed with sleep apnea. The eye and sleep apnea conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3/E4 profile and referred for a Medical Evaluation Board (MEB). The keratoconus and sleep apnea conditions, characterized as “keratoconus in each eye corrected with rigid gas permeable contact lenses, EPTS (existed prior to service), not permanently aggravated by service;” and “sleep apnea requiring CPAP,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as medically unacceptable. The MEB forwarded no other conditions. The PEB adjudicated “keratoconus in each eye, corrected with rigid gas permeable contact lens, EPTS, not permanently aggravated by service, but compensable IAW 10 USC 1207a;” and “sleep apnea, condition improved with CPAP;” as unfitting, rated 10% and 0% respectively, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: The CI writes: “I was awarded a 10% for my eye condition for active duty. When I was separated from the military I received a 80% rating from the VA.”


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 ratings for the unfitting keratoconus and sleep apnea conditions are addressed below; 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 20040130
 VA - STRs
Condition
 Code Rating Condition Code Rating Exam
KERATOCONUS EACH EYE
 6035-6079 10% KERATOCONUS, BILATERAL EYES 6035-6066* 30% STRs
SLEEP APNEA
 6847 0% OSA 6847 50% STRs
No Additional MEB/PEB Entries
 Other x 0
Combined: 10%
 Combined: 70%*
Derived from VA Rating Decision (VA RD ) dated 20 040236 ( most proximate to date of separation [ DOS ] ). * VARD of 20130114 changed the code from 6035 to 6035-6066 effective 3/20/04, the day after separation.



ANALYSIS SUMMARY:

Keratoconus. The CI was activated on 24 February 2003 and deployed on 7 March 2003. While deployed, he noted visual impairment which precluded him from meeting duty requirements. He was evaluated on 24 March 2003 and found to have possible keratoconus; the CI noted a year long history of deteriorating vision. He was redeployed on 6 April 2003 for further evaluation and the diagnosis of keratoconus confirmed. He was not thought to be a good candidate for a corneal transplant. He was issued rigid gas permeable contact lenses with improvement in his correctable vision to 20/50 in the right eye and 20/40 in the left and both eyes. He was then referred to an MEB for the disqualifying keratoconus condition due to the requirement for contact lenses for correction of his vision. The narrative summary (NARSUM), dictated on 12 December 2003, 3 months prior to separation, noted that the CI had initially been resistant to the use of hard contact lenses, but that he had improved corrected vision with their use. The PEB noted that the keratoconus condition was an EPTS condition which was not aggravated by service, but that it remained service-connected as the CI had over 8 years of active service from his US Navy enlistment and awarded a 10% disability rating. The Board reviewed the records in evidence and agreed with both determinations. The VARD proximate to separation was not in evidence at the time of the Board; however, it was obtained after the Board and was then reviewed by the Board members. This information did not impact the Board adjudication.

The Board directs attention to its rating recommendation based on the above evidence. The CI was diagnosed with keratoconus due to uncorrectable poor visual acuity while deployed. Multiple ophthalmological examinations documented a normal ocular examination other than the impaired visual acuity secondary to the keratoconus. With rigid contact lenses, the CI did correct to 20/50 on the right and 20/40 on the left. This supports a disability rating of 30% for the required use of contact lenses using code 6035, keratoconus, based on the VASRD at the time of separation.

Sleep Apnea. It is not clear from the record when the CI was diagnosed with obstructive sleep apnea (OSA). The final profile issued on 18 August 2003 lists OSA, but this was in a different type than the remainder of the form and appears to have been added after the profile was printed. On the 3 September 2003 history for the MEB (DD Form 2807), the examiner noted that the CI snored and woke up at night with difficulty breathing. A diagnostic polysomnogram (PSG) showed severe OSA (with mixed apneic elements as well) for which he underwent successful continuous positive airway pressure (CPAP) titration PSG on 31 October 2003. The NARSUM noted the sleep apnea was medically unacceptable and a subsequent addendum stated that there was definite industrial impairment. As noted above, the VA Compensation and Pension examination proximate to separation is not available for review.

The Board directs attention to its rating recommendation based on the above evidence. The Board noted that the OSA condition was diagnosed during the Disability Evaluation System period and that there is, therefore, a presumption of fitness. However, the PEB determined this to be an unfitting condition and the Board therefore considered the appropriate rating IAW the VASRD in effect at the time of separation. The CI was prescribed CPAP for severe sleep apnea. This supports a 50% disability rating. 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 sleep apnea 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the keratoconus condition and IAW VASRD §4.84a, at the time of separation, the Board unanimously recommends a disability rating of 30%. In the matter of the sleep apnea condition, the Board unanimously recommends a disability rating of 50%, coded 6847 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
Keratoconus in Each Eye Corrected with Rigid Gas Permeable Contact Lenses
 6035-6079 30%
Sleep Apnea
 6847 50%
COMBINED
 70%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120606, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review



SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXXXXX, AR20130021928 (PD201201169)


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 70% 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 70% 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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)


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