Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-02360
Original file (PD-2013-02360.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX     CASE : PD -20 13 - 0 2360
BRANCH OF SERVICE: Army   BOARD DATE: 201 4 0711
Separation Date: 20040917


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SFC/E-7 (54B / Chemical Operations Specialist) medically separated for obstructive sleep apnea (OSA). This condition was diagnosed in July 2000, and could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) and he was referred for a Medical Evaluation Board (MEB). The OSA condition was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The PEB adjudicated “obstructive sleep apnea, requiring CPAP…” as unfitting and indicated that the condition existed prior to service (EPTS). The CI did not concur and demanded a formal hearing. An I nformal R econsid eration PEB found the condition unfitting and rated it 0% disability with application of Department of Defense Instruction (DoDI) 1332.39. This PEB also stipulated that the condition “existed prior to service and was not permanently aggravated by service, but is compensable in accordance with 10 USC 1207a . ” The CI was separated with a 0% disability rating.


CI CONTENTION : “I was given a 60% disability rating by the VA, how can I be given a 0% rating by a medical eval board? Why the vast discrepancy?”


 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; 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 Recon PEB – Dated 20040824
 VA – based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
OSA, requiring CPAP…EPTS…not permanently aggravated… but compensable IAW 10 USC 1207a 6847 0% Sleep Apnea 6847 Not Service Connected(NSC*) STR
No Additional MEB/PEB Entries
 Other x5
Combined: 0%
 Combined: 60%
invalid font number 31502 *The Board of Veteran’s Appeals invalid font number 31502 invalid font number 31502 (VBA) invalid font number 31502 remanded this case and the VARD 20071218 increased the OSA condition rating invalid font number 31502 to 50 invalid font number 31502 % effective 20010203. invalid font number 31502


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 (DVA) , operating under a different set of laws. The Board considers D VA evidence within 12 - months only to the extent that it reasonably reflects the disability at the time of separation.

OSA, requiring continuous positive airway pressure ( CPAP ) Condition . The CI was seen by a civilian physician with complaints of snoring, periods of sleep apnea, feeling unrefreshed upon waking and daytime somnolence. The CI’s Epworth Sleepiness Scale score was 17, normal is 6 with a maximum of 24. The examiner opined that sleep apnea was likely present and proceeded with a nasal CPAP titration. He underwent a nocturnal polysomnogram which confirmed the diagnosis of OSA. The initial c ommander’s s tatement indicated that the CI’s condition made him non-deployable as he needed to be in an environment where electricity was sufficiently available to properly operate his CPAP machine. He had undergone a reevaluation polysomnogram study which demonstrated relief with CPAP was incomplete. The CI was referred to an e ar , n ose , and t hroat (ENT) surgeon who noted severe OSA in a patient that had severe obesity and recommended a Bi-PAP machine. The MEB narrative Summary exam approximately 6 months prior to separation documented that the CI was on a prolonged trial of CPAP which helped . He further noted that s ometimes when t he CI was able to tolerate the CPAP , he was able to get a restful sleep and functioned fairly well during the daytime. On nights that he was unable to tolerate the CPAP machine, he had daytime somnolence. Th e CI also reported that in the prior few months he had developed intermittent wheezing with exercise and sometimes at night which would cause him significant shortness of breath and decreased exercise tolerance. The physical exam finding showed an oral pharynx that was small and edematous. The examiner opined that the CI’s condition was stable and his functional status depended on his getting a restful ni ght’s sleep using the CPAP or Bi-PAP machine which wa s variable. The second c ommander’s s tatement documented that the CI’s medical condition prevented him from engaging in both soldering and MOS related tasks as he was unable to sleep without a CPAP or BI-PAP device by his side and his medical condition adversely impacted his unit’s readiness. The CI was given a permanent P3 p rofile for sleep apnea on CPAP with specific restrictions that he should not be deployed to an area where definitive medical care was not available. A VA Compensation and Pension (C&P) exam was not completed at the time of separation . The CI underwent a VA C&P exam on 30 September 2005.

The Board directs attenti on to its rating recommendation based on the above evidence . The PEB coded the OSA condition 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 Reconsideration PEB documented on DA Form 199 that the OSA EPTS and was not permanently aggravated by service; however this condition was compensable in accordance with 10 USC 1207a. The VA coded the s leep a pnea condition as 6847 and rated as NSC. The CI appealed the VA decision and the VA remanded his case and mandated further development of evidence in support of his appeal for a 50% rating. Based on a review of the evidence, the rating of the s leep a pnea condition was increased to 50% effective on 3 February 2001. T he MEB exam stated that the CI required and used CPAP for the 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. 100 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.


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 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
O bstructive S leep A pnea , requiring CPAP 6847 5 0%
COMBINED 5 0%
invalid font number 31502

The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 131105 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record




                          
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review





invalid font number 31502 SAMR-RB                                                                         


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 XXXXXXXXXXXXXXX, AR20150004328 (PD201302360)


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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

Similar Decisions

  • AF | PDBR | CY2012 | PD2012 00905

    Original file (PD2012 00905.rtf) Auto-classification: Approved

    Separation Date: 20060420 The CI continued to require CPAP for the severe OSA. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

  • AF | PDBR | CY2012 | PD 2012 01039

    Original file (PD 2012 01039.rtf) Auto-classification: Approved

    A CPAP machine was ordered and the examiner changed the profile to a P-4 profile. There is no evidence of a PEB document for review in this case; however, the Board was able to confirm that the CI was separated for OSA and received severance pay. In consideration of this evidence, and IAW DODI 6040.44, the Board must recommend a separation rating of 50% for the OSA condition.

  • AF | PDBR | CY2013 | PD-2013-02822

    Original file (PD-2013-02822.rtf) Auto-classification: Approved

    SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (42A20/Human Resources Sergeant) medically separated for obstructive sleep apnea (OSA) with nocturnal hypoxia, treated with bi-level positive airway pressure (BIPAP). 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...

  • AF | PDBR | CY2013 | PD-2013-01581

    Original file (PD-2013-01581.rtf) Auto-classification: Approved

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The examiner noted some mild swelling and minimal tenderness below the patella with a “tendency to sublux medially” and the CI was given a soft knee brace with a patella cut–out.At the MEB examination on17 June 2004, 6...

  • AF | PDBR | CY2013 | PD-2013-02123

    Original file (PD-2013-02123.rtf) Auto-classification: Denied

    No other conditions were submitted by the MEB.The Informal PEB adjudicated “Obstructive Sleep Apnea with CPAP, mild impairment” as unfitting, rated 0%. Therefore, IAW VA Schedule for Rating Disabilities (VASRD)§4.97 (schedule of ratings,respiratory system)and 6847 rating criteria, the disability due to the OSA condition meets the 50% rating specified as “requires use of breathing assistance device such as continuous positive airway pressure (CPAP) machine, but does not meet the next higher...

  • AF | PDBR | CY2009 | PD2009-00254

    Original file (PD2009-00254.docx) Auto-classification: Denied

    The Commander’s statement and the Behavioral Health screening exam do, however, document issues with somnolence and alertness which could be an unfitting impairment. This is therefore the Board’s recommendation in regards to this condition. Other Conditions .

  • AF | PDBR | CY2013 | PD2013 02110

    Original file (PD2013 02110.rtf) Auto-classification: Denied

    His also complained of sleep issues,which were considered to meet retention standards. Surgery was not indicated.The MEB separation examination on 5 May 2009 (6 months prior to separation) noted no back tenderness or muscle spasm. The VA examination meanwhile showed completely normal ROM and no additional limitation after repetition.

  • AF | PDBR | CY2011 | PD2011-00536

    Original file (PD2011-00536.docx) Auto-classification: Approved

    The conditions, exercise induced asthma and OSA requiring C-PAP as requested for consideration, meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting conditions. In the matter of the exercise induced asthma with OSA requiring CPAP conditions, the Board unanimously recommends a TDRL and permanent service disability rating of 50%, coded 6602-6847 IAW VASRD §4.96 and §4.97. RECOMMENDATION : The Board...

  • AF | PDBR | CY2014 | PD-2014-03859

    Original file (PD-2014-03859.rtf) Auto-classification: Approved

    Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.129, and rating of the MH condition adjudicated as not unfitting. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.The...

  • AF | PDBR | CY2013 | PD-2013-01483

    Original file (PD-2013-01483.rtf) Auto-classification: Approved

    CI CONTENTION : The CI simply stated “Sleep Apnea.” A 50% disability rating is warranted when the disability requires the use of a breathing assistance device such as a CPAP machine. 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...