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AF | PDBR | CY2013 | PD-2013-02822
Original file (PD-2013-02822.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXX               CASE: PD-2013-02822
BRANCH OF SERVICE: ARMY           BOARD DATE: 20140716
SEPARATION DATE: 20060425


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). The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded “severe obstructive sleep apnea with nocturnal hypoxia” to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded five other conditions to the PEB as medically acceptable. The Informal PEB adjudicated the “obstructive sleep apnea with nocturnal hypoxia” condition as unfitting, rated at 0% citing criteria of Department of Defense Instruction (DoDI) 1332.39. The remaining conditions were determined to be not unfitting and not ratable. The CI made no appeals and was medically separated.


CI CONTENTION: “The member request change of PTSD rating. Member constantly has depression, nightmares 3-4 times a week, no interest to have friends, suicidal thoughts; problems maintain his employment and marriage.” Member also noted he “is on Citalopram and has been going to Mental Health.”


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. The requested posttraumatic stress disorder (PTSD) condition was not identified by the MEB or the PEB and thus is not within the DoDI 6040.44 defined purview of the Board. Of the conditions determined to be not unfitting by the PEB, members judged that none were specified sufficiently in the application to meet the DoDI 6040.44 scope requirements. Any conditions which were excluded from scope, and any condition or contention 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 20060308
 VA - (Exam ~ 5 Mos. Pre -Separation)
Condition
 Code Rating Condition Code Rating Exam
Obstructive Sleep Apnea (OSA) w/ Nocturnal Hypoxia 6847 0% Sleep Apnea 6847 50% 20051110
No Additional MEB/PEB Entries In Scope
 Other x 4 20051110
Combined: 0%
 Combined: 60%*
Derived from VA Rating Decision (VA RD ) dated 200 70410 ( which included the deferred issues rated retroactive to date of separation)



ANALYSIS SUMMARY:

Obstructive Sleep Apnea Condition. The VA Compensation and Pension examination dated 
10 November 2005 (performed 6 months prior to separation) reported that the use of BIPAP alleviated his symptoms.

The narrative summary dated 20 November 2005 noted that after instituting continuous positive airway pressure (CPAP) for the OSA condition, the symptoms were incompletely relieved. Despite manipulation of airway pressures, the CI still experienced daytime fatigue due to sleepiness, and had difficulty with concentrating, especially during long tasks such as driving.

The Board directs attention to its rating recommendation based on the above evidence. The OSA condition was well documented in the service treatment record. The CI was placed on a permanent profile that required him to use a CPAP machine. The PEB asserted that use of a CPAP machine was not a part of the rating criteria IAW DODI 1332.39, thereby supporting a 0% rating. However, VASRD §4.97 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. There was no evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or requirement for a tracheostomy to support a 100% rating. In consideration of these facts, the Board unanimously recommends a disability rating of 50% for the OSA condition, coded as 6847.


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 obstructive sleep apnea 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 re-characterized 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 20131223, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record






                                   
XXXXXXXXXXXX
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 XXXXXXXXXXXX, AR20150004683 (PD201302822)


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

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