RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 APRIL 2005
      DOCKET NUMBER:  AR20040005452


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Mr. Larry Olson                   |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests physical disability retirement.

2.  The applicant states that the Physical Evaluation Board (PEB) used
their personal ideas and experiences to justify the fit finding instead of
the medical evidence.

      a.  He states that his severe obstructive sleep apnea be considered as
incurred while entitled to basic pay as determined in the Medical
Evaluation Board (MEB) proceedings and rated as a disability per guidelines
contained in the Department of Veterans Affairs Schedule for Rating
Disabilities (VASRD).
He cites from Army Regulation 635-40, “sudden development occurring while
in military service will be regarded as service-incurred or service-
aggravated,” and “In the absence of such proof by the preponderance of the
evidence, reasonable doubt should be resolved in favor of the Soldier.”

      b.  His knees should be rated separately and with the bilateral
factor applied.

      c.  He had never stopped breathing or showed signs of severe
obstructive sleep apnea prior to the events that took placed in the Gulf in
late August 2003.  The onset of sleep apnea started after six months of
severe heat, 15-17 hour workdays, and walking 8-10 miles with full battle
gear.  He was never observed to have stopped breathing by anyone, including
his wife, prior to the event that was observed in Kuwait.


      d.  The physical standards for his MOS (military occupational
specialty), call for a physical profile serial of no less than 2 2 2 2 2 1.
 His permanent profile is 3 1 3 1 1 1.  In order for him to renew a marine
license, required by the MOS, he must meet the physical standards of the
MOS.  Operation of an Army watercraft requires the physical ability to sail
on extended voyages in all weather conditions.  A CPAP (continuous positive
air pressure) machine cannot be used during heavy weather due to the
extreme conditions that occur during extended operations, e.g., no
guarantee of constant electrical current, loss of power, etc.  The wearing
of a CPAP mask would be impossible in heavy weather.  The lack of rest in a
marine engineering environment is dangerous and life threatening.


      e.  He injured his knees after jumping out of a vehicle to enter a
bunker at the sound of an explosion.  Evaluations conducted at Walter Reed
Army Medical Center (WRAMC) show that he has a severe sprain in his left
knee, a posterior horn lateral meniscus tear in his right knee, and chronic
patellofemoral pain syndrome, degenerative joint disease, chronic pes
anserine, and knee instability in both knees.


      f.  During the initial examination of his knees, a doctor at WRAMC
observed that he had a rash on his left leg.  Although there appears to be
no definitive clinical diagnosis, he wants this to be documented.


      g.  Because of his injuries it is not possible for him to continue in
the same civilian occupation as a marine surveyor, marine engineer, and
vessel master.  He will have to train in another career.  He has been a
Soldier since 1970, serving with distinction and honor.  He has incurred
injuries that he did not have prior to his deployment that have caused him
to be physically unfit.  He has always felt that he could rely on the Army
to take care of his health and retirement issues.
                            HH

3.  The applicant provides the documents depicted herein.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be retired with a physical
disability rating of 60 percent.

2.  Counsel states that the PEB failed to consider that the applicant’s
specialty requires him to be healthy enough to qualify for a marine
license.  His physical profile serial prohibits him from doing so.  If the
disabilities in total had been considered with the MOS requirements a
finding of unfit would have been made. The PEB considered his sleep apnea
to be existing prior to service (EPTS), although there was no
substantiating evidence.  His private doctor, who provided treatment to the
applicant since 1984, stated that the applicant had no prior history of
sleep apnea.  This statement and the applicant’s DA Form 2173 (line of duty
investigation) were ignored as were the medical records of treatment.  The
disability is 50 percent disabling in accordance with the VASRD diagnostic
code 6847, sleep apnea syndromes, because of the requirement to use
breathing assistance devices such as the CPAP machine.  His bilateral knee
disabilities were incurred on active duty, and he was found unfit by
several medical professionals.  VASRD diagnostic code 5003 notes that x-ray
evidence involving two or more major joints, such as knees, with
exacerbating episodes will be rated at 20 percent.  Diagnostic code 5257
notes that recurrent instability or subluxation, slight, will be rated at
10 percent for each major joint.  In addition, the applicant was issued
Donjoy Braces for both knees for the lateral instability, supporting the
conclusion of two unfitting disabilities.  When the disability information
is matched with the VASRD, the applicant should have a 60 percent
disability rating, requiring him to be placed on the permanent disability
retired list.
The statutes are explicit in this matter, and as such, the Board is not
free to substitute its own judgment as to whether or not a particular
condition will be considered, especially when there is clear and convincing
evidence supporting placement on the physical disability retired list.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s official military personnel records (OMPF) are not
available.  The evidence submitted is that provided by the applicant.  The
applicant was a Reserve Chief Warrant Officer Five (CW5) who was apparently
ordered to active duty in support of Operation Enduring Freedom or Iraqi
Freedom, and who deployed to Kuwait in February 2003.  He is no longer on
active duty.

2.  A DA Form 2173 indicates that the applicant twisted his left knee on
         23 August 2003 in Kuwait while stepping from a HUMVEE (military
vehicle) onto sand.  His injury was in line of duty.

3.  On 27 August 2003 the applicant was seen because of his complaint of
sleep apnea.  He was evacuated to the United States.  The aeromedical
evacuation record indicates that his roommate witnessed his sleep apnea,
that he had chronic fatigue, and that the applicant stated that he had a
long history of irregular breathing pattern and nocturnal problems during
the day.

4.  On 8 September 2003 the applicant underwent an overnight test in the
sleep laboratory at WRAMC.  The study revealed severe obstructive sleep
apnea.  He was prescribed a CPAP machine for use at home.  He was also
referred to the dental clinic where he would be fitted for an oral
appliance for treatment for his obstructive sleep apnea.  The evaluating
physician stated that he had two realistic treatment options, consisting of
the oral appliance and CPAP therapy, and that with CPAP therapy the
applicant had to have a permanent profile to allow use and had to have
access at night to a reliable source of electricity.  He would otherwise be
able to perform his duty normally.  If the oral appliance was successful,
he would be fit for duty in all conditions.

5.  The applicant was treated for his left knee pain at WRAMC on 11
September 2003.

6.  A 22 September 2003 DA Form 2173 indicates that on 25 August 2003 while
at Camp Arifjan in Kuwait the applicant was observed to stop breathing
while sleeping.  He was seen by a doctor and medically evacuated to WRAMC.
7.  On 30 September 2003 the applicant was given a permanent profile (P3)
because of obstructive sleep apnea.

8.  In a 5 December 2003 e-mail to a doctor at WRAMC the applicant stated
that he tried the oral appliance but woke up choking, in a panic.  He
discontinued using it and returned to the CPAP.  He stated that he was
having excellent results using the CPAP.

9.  On 29 January 2004 the applicant had an MRI (magnetic resonance
imaging) of his right knee, which indicated an obliquely oriented linear
signal abnormality of the posterior horn of the lateral meniscus extending
to the inferior articular surface, likely representing a small non-
displaced posterior horn lateral meniscus tear.  Lateral and cruciate
ligaments were intact.  There was no significant joint effusion.  Medial
meniscus was unremarkable.

10.  He was seen on 26 February 2004 and diagnosed with obstructive sleep
apnea and degenerative joint disease to his left knee.  The examining
physicians indicated that he could not do his military or civilian job, and
that he was ready for a MEB/PEB.

11.  An 18 March 2004 MEB summary shows that the applicant was diagnosed
with sleep apnea, chronic patellofemoral pain syndrome, degenerative joint
disease in bilateral knees, and chronic pes anserine bursitis.

12.  On 5 April 2004 a MEB indicated that the applicant’s conditions, sleep
apnea, chronic patellofemoral pain syndrome, degenerative joint disease in
bilateral knees, and chronic pes anserine bursitis, were medically
unacceptable, and recommended that he be referred to a PEB.  The applicant
agreed.

13.  On 6 May 2004 a PEB found the applicant physically unfit because of
chronic patellofemoral pain syndrome with a history of a left knee injury.
The PEB stated that he was subsequently diagnosed with the condition
bilaterally resulting in pes anserine bursitis.  It indicated that a
physical examination reported bilaterally full ranges of motion with 5/5
muscle strength.  There was no ligamentous laxity.  There was joint line
tenderness and bilateral pes anserine bursa inflammation.  Radiographs
noted degenerative joint disease.  The PEB noted that the applicant
reported his obstructive sleep apnea condition on         29 August 2003
and was first seen for that condition by Army medical personnel on 9
September 2003.  The PEB stated that the applicant had been given a CPAP
device with positive results, stated that this condition existed prior to
service, and that there was no evidence of permanent service aggravation.
The PEB recommended that the applicant be separated with severance pay with
a   10 percent disability rating because of his knee condition.  The
applicant disagreed and demanded a formal hearing.

14.  A 12 May 2004 medical record shows that the applicant was treated for
bilateral knee pain.  The examining physician stated that the applicant was
progressing toward goals and that his baseline pain level had decreased
since the beginning of therapy.  He had occasional sudden onsets of pain in
right knee with subsequent knee instability.

15.  A 20 May 2004 medical record shows that the applicant was treated for
a follow up of bilateral knee pain.  The examining physician stated that
the applicant’s knee pain was improving with strengthening and self-
management, although pain persisted, and that he would need to continue
exercise lifelong for maintenance.

16.  In a 28 May 2004 statement, a doctor in Milton, Delaware stated that
the applicant had been a patient since 1984, that he had no history of
sleep apnea, or reason for the same.

17.  The applicant submits a copy of pages from Department of the Army
Pamphlet 611-21, which shows that for an individual in his grade (Chief
Warrant Officer Five) and MOS 881A0, he had to be qualified with a Class A2
vessel Army/marine license.  He submits a copy of Army Regulation 56-9
which indicates that the physical standards for his MOS calls for a
physical profile serial of 2 2 2 2 2 1.

18.  The applicant submits copies of medical documents which show that he
has a rash.

19.  On 8 June 2004 the Department of Veterans Affairs awarded the
applicant a zero percent service connected disability rating for hearing
loss to his left ear, a 50 percent rating for sleep apnea, a 10 percent
rating for chronic patellofemoral pain syndrome with degenerative joint
disease, left knee, and a 10 percent rating for chronic patellofemoral pain
syndrome with degenerative joint disease, right knee.  Service connection
for skin rash to his left leg was denied.

20.  He submits a copy of a 28 June 2004 letter to him from a member of the
Military Order of the Purple Heart in support of his request.

21.  On 7 July 2004 the applicant was prescribed Donjoy knee braces for
lateral support by a doctor at WRAMC.

22.  In the processing of this case an advisory opinion was obtained from
the Physical Disability Agency (USAPDA).  That agency indicated that on 30
June 2004, after hearing the applicant’s testimony, the comments of his
representatives, and reviewing numerous documents, to include a five page
statement by the applicant, a formal PEB found him fit for duty.  He
submitted a rebuttal on 12 July 2004.  On 20 July 2004 the PEB reviewed his
rebuttal and affirmed their prior findings.  On 26 July 2004 the USAPDA
reviewed his case and found that the PEB’s findings were supported by a
preponderance of the evidence.

      a.  The USAPDA indicated that the applicant hurt his left knee in
August 2003 while on active duty.  There was no evidence of any injury to
his right knee. The USAPDA stated that the MEB noted tenderness of both
knees, left greater than right, with full ranges of motion, no atrophy,
full strength, and no joint instability.  He had full reflexes and
sensations.  All ligaments were intact with no joint effusion.  There was
no evidence as to when the possible meniscus tear had occurred.  At the
formal hearing it was established that there was no medical evidence, by
testing or physical examination, which showed instability of the knees.
His profile limited him from running, but most other duties/functions were
not limited, and he could take an alternate aerobic physical training test.


      b.  The USAPDA stated that the applicant’s sleep apnea was adequately
controlled by use of the CPAP machine.

      c.  The USAPDA opined that the applicant’s claim that he had to be
found unfit because his profile was more restrictive than that allowed by
his MOS requirement was without merit, and stated that if this were so,
then all Soldiers would be automatically unfit every time they were given a
profile more restrictive than their MOS requirements.  Consequently, there
would be no need for the USAPDA.  Profiles are medical recommendations to
the command and do not require an automatic unfit finding by the USAPDA.


      d.  The USAPDA stated that during the formal hearing, the PEB went
through each diagnosis with the applicant and determined that,
notwithstanding some limitations, he could perform many of the duties and
requirements of his MOS; and that he was able to perform in tasks
appropriate to his experience, grade, and MOS.  Based on a complete review
of his case file and formal hearing proceedings, the PEB’s findings of fit
for duty was appropriate.  The USAPDA recommended that the applicant’s
request be denied.

23.  On 21 September 2004 the applicant was furnished a copy of the
advisory opinion for his information and possible rebuttal.  He failed to
respond.
24.  There is no evidence, nor has the applicant submitted any, to show his
disposition subsequent to the PEB’s decision that he was fit for duty;
however, a summary of the applicant’s Reserve retirement points shows that
he transferred to the Retired Reserve on 2 October 2004.

25.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the MEB determines the Soldier does not meet retention
standards, the board will recommend referral of the Soldier to a PEB.

26.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

27.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

28.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  However,
an award of a higher VA rating does not establish error or injustice in the
Army rating.  An Army disability rating is intended to compensate an
individual for interruption of a military career after it has been
determined that the individual suffers from an impairment that disqualifies
him or her from further military service.  The VA, which has neither the
authority, nor the responsibility for determining physical fitness for
military service, awards disability ratings to veterans for conditions that
it determines were incurred during military service and subsequently affect
the individual’s civilian employability.  Accordingly, it is not unusual
for the two agencies of the Government, operating under different policies,
to arrive at a different disability rating based on the same impairment.
Furthermore, unlike the Army, the VA can evaluate a veteran throughout his
or her lifetime, adjusting the percentage of disability based upon that
agency’s examinations and findings.  The Army rates only conditions
determined to be physically unfitting at the time of discharge, thus
compensating the individual for loss of a career; while the VA may rate any
service connected impairment, including those that are detected after
discharge, in order to compensate the individual for loss of civilian
employability.  A common misconception is that veterans can receive both a
military retirement for physical unfitness and a VA disability pension.  By
law, a veteran can normally be compensated only once for a disability.  If
a veteran is receiving a VA disability pension and the ABCMR corrects the
records to show that a veteran was retired for physical unfitness, the
veteran would have to choose between the VA pension and military
retirement.

DISCUSSION AND CONCLUSIONS:

1.  On 5 April 2004 an MEB determined that the applicant’s conditions,
sleep apnea and his knee problems, were medically unacceptable, and
recommended that he be referred to a PEB.  Noted, however, is the narrative
prepared for the MEB by a doctor at the Sleep Disorder Center at WRAMC, in
which that physician stated that in order to undergo CPAP therapy, the
applicant had to have a permanent profile to allow CPAP use and have access
at night to a reliable source of electricity, implying that the profile
given to the applicant was in order for him to use the CPAP machine.  Also
noted, is the statement by that same physician that he would be able to
perform his duty normally, that is, except for when he was undergoing the
CPAP therapy during sleep.

2.  The informal PEB determined that the CPAP therapy did not hinder his
duty performance, and that the pain in his left knee was 10 percent
disabling.  He disagreed and demanded a formal PEB.  As indicated by the
advisory opinion from the USAPDA, he was found fit for duty, his rebuttal
was considered and denied, and the USAPDA determined that the preponderance
of evidence supported the findings that the applicant was fit for duty.

3.  The PEB finding, concurred in by the USAPDA, found that he could do
most of the duties required by his MOS, despite his sleep apnea, and that
his knee problems limited him from running, but otherwise he could do his
job.  In spite of his contentions and those of his counsel, he has not
shown that he was unable to perform the duties required of him.

4.  The fact that the VA, in its discretion, has awarded the applicant a
disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.
5.  The award of VA compensation does not mandate disability retirement or
separation from the Army.  The VA, in accordance with its own policies and
regulations, awards compensation solely on the basis that a medical
condition exists and that said medical condition reduces or impairs the
social or industrial adaptability of the individual concerned.
Consequently, due to the two concepts involved, the applicant's medical
condition, although not considered medically unfitting for military service
at the time of processing for separation, discharge or retirement, may be
sufficient to qualify him for VA benefits based on an evaluation by that
agency.  Furthermore, the VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings. The VA is not required to determine fitness for
duty at the time of separation.  The Army must find a member physically
unfit before he can be medically retired or separated.

6.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.  Consequently, his request for physical
disability retirement is denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___LB___  __LO ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  ____ Raymond Wagner_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040005452                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050419                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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