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AF | PDBR | CY2014 | PD-2014-03859
Original file (PD-2014-03859.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX     CASE: PD -20 1 4 - 0 3859
BRANCH OF SERVICE: Army  BOARD DATE: 20141113
SEPARATION DATE: 20050404


SUMMARY OF CASE: The available evidence of record reflects that this covered individual (CI) was an active duty S PC /E- 4 ( 11B , Infantryman ) medically separated for obstructive sleep apnea (OSA) . The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent P3H2 profile and referred for a Medical Evaluation Board (MEB). The OSA condition, characterized as “ s leep apnea , ” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 . The MEB also identified and forwarded four other conditions ( d ysthymic disorder, h ypertension, p soriasis and o besity) for PEB adjudication. The I nformal PEB adjudicated OSA as unfitting, rated at 0 %, referencing Department of Defense Instruction (DoDI) 1332.39. The remaining conditions were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “1. The diagnosis was wrong. 2. I was awarded 0% even though I had sleep apnea and generaized [sic] anxiety disorder, Ptsd, B. Polar. The VA Imediaty [sic] rendered a verdict of over 100% disability. 3. Physical injury sufferd [sic] on active duty (left shoulder).”


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 conditions is addressed below. In addition, the CI was notified by the Service that his case qualifies for review of his mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012, and whose MH diagnoses were unfavorably changed or eliminated during that process. In response to said notification, it is presumed the CI has elected review by this Board for the MH condition. 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 requested left shoulder condition was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board. No additional conditions are within the DoDI 6040.44 defined purview of the Board. IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation. 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 20050305
 VA - (5.5 Mos. Post-Separation) and based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Obstructive Sleep Apnea… 6847 0% Severe Obstructive Sleep Apnea to Include Recurrent Bronchitis (Also Claimed as Shortness of Breath) 6600-6847 50% STR
Dysthymic Disorder, Chronic/Mild Not Unfitting Generalized Anxiety Disorder with Dysthymic Disorder 9400 50% 20050920
Post-Traumatic Stress Disorder 9411 NSC 20050920
Other x 3 (Not in Scope)
 Other x 10 20050920
Rating: 0%
 Combined: 90%
Derived from VA Rating Decision (VA RD ) dated 200 51115


ANALYSIS SUMMARY:

Obstructive Sleep Apnea (OSA) Condition. The CI was first evaluated for a history of snoring and witnessed “air hunger,” excessive daytime sleepiness, fatigue and poor concentration, in November 2004. His first reported symptoms were recorded in early 2002. In November 2004, the CI underwent a sleep study that confirmed the diagnosis of OSA, severe. His weight was recorded at 250 pounds and his height and he was five feet nine inches tall. Continuous positive airway pressure (CPAP) device was prescribed.

A specialty addendum to the narrative summary (NARSUM) noted that the CI had been using CPAP “with some improvement, 50%;” but, caveated that “he has to sleep sitting up.” He also continued to report chronic fatigue, trouble with memory and excessive daytime sleepiness. Although, there was evidence of mild nasal septal defect, he was not considered a candidate for surgery, since it was opined the defect had not compromised the nasal airway. The NARSUM indicated there had initially been a “75% improvement” with CPAP; however, the addition of anti-depressant medications had affected his sleep. There had been no compliance issues.

The VA Compensation and Pension examiner (performed 5 months after separation), noted the CI had been unsuccessful in his effort to lose weight and had continued to use the CPAP that had been beneficial. The CI reported he still had fatigue and occasionally fell asleep during the day. There was no evidence in the VA file for adjustment of CPAP after separation, or any revaluation of the condition.

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s DA Form 199 assigned a 0% rating under DODI 1332.39 (E2.A1.2.21), and based the fitness adjudication solely on field impediments to the use of CPAP. The Board is obliged to apply VASRD §4.100 which mandates a minimum rating of 50% under 6847 for sleep apnea syndromes requiring a breathing assistance device. Compliance with CPAP and its continued requirement are well documented in the records. Therefore, 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.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the dysthymic disorder was not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The Board first reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military Disability Evaluation System. The evidence of the available records showed the diagnoses of dysthymic disorder, depression, and anxiety were rendered. The depression and anxiety diagnoses were recorded on the MEB history and physical (DD Form 2808) without documentation of related symptoms. The DD Form 2808 also recorded “possible PTSD”; no PTSD symptoms were documented. The Board determined that no MH diagnosis was changed in the disability evaluation process, since depression and anxiety symptoms are consistent with dysthymic disorder and are not separate diagnoses in the presence of dysthymia, unless there is evidence that DSM-IV diagnostic criteria are met for depression or anxiety. Nonetheless, dysthymic disorder is a compensable condition and would be rated equally to any other Axis I pathology if found unfitting. This applicant therefore did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board next considered whether the MH condition was unfitting for continued military service, regardless of specific diagnosis. The NARSUM noted the CI gave a history of becoming more and more depressed while he was in Korea, 2002. His depression was exacerbated by his deployment to Iraq, and he did not seek MH care until September 2004. At that time he reported a dysphoric mood, irritability, anxiety, anhedonia, social isolation and excessive eating. The CI was prescribed anti-depressant medication and participated in talk therapy; both were reported to have been helpful. His mental status examination at the psychiatry NARSUM performed in January 2005 was unremarkable; he had a mildly dysphoric mood. His Global Assessment of Functioning score was 65 (mild), and the examiner noted his condition of dysthymic disorder, chronic, mild, was not unfitting and his prognosis was favorable. The dysthymic condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. There was no performance based evidence from the record that any MH condition significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the dysthymic disorder.


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 OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97. In the matter of the contended dysthymic disorder, chronic, mild, condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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
Obstructive Sleep Apnea 6847 50%
COMBINED 50%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140825, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXXX
President
Physical Disability Board of Review
SAMR-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 XXXXXXXXXXXXXXX, AR20150010363 (PD201403859)


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

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