RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060008719 


	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. Gerard W. Schwartz

Acting Director

Ms. Anita McKim-Spilker

Analyst


The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 defers to his counsel's memorandum in support of his request.

2.  The applicant defers to his counsel's arguments in support of his request.

3.  The applicant provided his counsel with all documentation shown below. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be reinstated in the New Mexico Army National Guard (NMARNG) and paid from 15 June 2005 to the date of his retirement.  In the alternative, counsel requests the applicant be placed on the Temporary Disability Retirement List (TDRL) with a 30 percent disability rating until resolution of his sleep apnea condition.

2.  Counsel states, in effect: 

	a.  The Physical Evaluation Board (PEB) erred by awarding the applicant only a zero percent rating for his obstructive sleep apnea (OSA) when there was sufficient evidence that he suffered from industrial impairment.  It is fact that he was initially referred to the Medical Evaluation Board (MEB) because his condition interfered with his performance of duties in an office environment.  

	b.  The PEB failed to take into consideration the high (75%) likelihood that oral surgery would be effective in restoring the applicant's ability to work.  Had the applicant been correctly placed on the TDRL prior to being cured of his OSA, he would have remained in the ARNG and would have been able to complete his 20 years of active duty service.  There was ample medical evidence to support placing the applicant on the TDRL.

	c.  In September 2006, the applicant underwent oral surgery that made his OSA manageable and he no longer suffers from the symptoms that contributed to his industrial impairment.  His doctor provided the PEB a letter indicating that there was about a 75% likelihood that the applicant's OSA could be cured by undergoing oral surgery.  However, he was erroneously discharged before surgery could be accomplished.

	d.  The applicant was also diagnosed with severe ankle and knee pain from an injury which occurred in October 2003.  The pain was significantly aggravated during physical activity, restricting the applicant from performing his duties.  The PEB also addressed the applicant's ankle and knee pain and found him unfit for duty because of his ankle and knee condition.  

3.  Counsel provides a copy of the applicant's MEB, PEB and all associated documents, to include service medical and private medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Chief Warrant Office 3 working full time in the Information Management Office with the NMARNG in Santa Fe.

2.  In March 2000, the applicant reports that he began experiencing chronic headaches, sleep loss, moodiness, and excessive fatigue which restricted his ability to function at work and participate in mandatory exercises with his unit.  However, neither the applicant nor his counsel provided any medical evidence to show he sought medical help prior to August 2002.

3.  On 27 August 2002, the applicant was seen by the New Mexico Center for Sleep Medicine, Albuquerque, New Mexico.  He and his wife reported loud disruptive snoring, that had gradually worsened over the past couple of years.  He also reported that he would awaken tired, with morning headaches, chest discomfort and dry mouth.  During the day, he had some difficulty concentrating and occasionally he had some sleepiness during the day; however, to that point in time, it had not interfered with his work.  He reported he was not sleepy when driving, he did not have restless legs, or any complaints suggesting narcolepsy.

4.  The examiner's impression was that the applicant probably had mild to moderate OSA.  He recommended a nocturnal polysomnogram be performed to assess the degree of apnea disturbing the applicant's sleep.  The applicant was advised of the signs and symptoms of OSA, the clinical consequences of OSA, and treatment options, including weight loss, positional therapy, oral appliances, oral surgery, and nasal CPAP (Continuous Positive Airway Pressure.)

5.  The applicant did not follow-up as recommended, and a nocturnal polysomnogram was not performed until 1 May 2004.  The study showed the applicant delayed sleep onset due to poor sleep hygiene (i.e., watching TV in bed), but once asleep, the patient had moderate, intermittent snoring and demonstrated a moderate degree of upper airway resistance syndrome with fairly mild numbers of hypopneas and apneas.  He was diagnosed with mild OSA with moderate upper airway resistance syndrome.  His doctor recommended an oral appliance, oral surgery, or CPAP.  
6.  On 16 August 2004, the applicant's doctor provided a summary of his medical situation.  He was first seen in consultation on 27 August 2002 due to complaints of snoring.  His presumptive diagnosis was a mild degree of OSA with relatively mild symptoms of fatigue and no abnormal sleepiness.  He was reevaluated on 1 May 2004, and a sleep study confirmed the presence of moderate sleep apnea. He returned on 27 May 2004 for a second sleep study to begin treatment with CPAP.  The CPAP worked well for him, and a CPAP device was ordered for his use at home on a nightly basis.  The CPAP device was working well in controlling his apnea and he reported no further problems with daytime sleepiness, difficulty concentrating, or any other symptoms of OSA.  

7.  The applicant's doctor explained the principle benefits to treating OSA (i.e., to prevent cardiovascular disease, as well as heart attack) and indicated that it is highly recommended that persons with significant OSA be treated effectively, by wearing their CPAP device all night, every night.  There is no lasting benefit from CPAP that allows a person to use the device some nights, not use it other nights and still have good cognitive function.  He reported that the applicant's cognitive, mental functions appeared to have returned to normal; however, if he did not use the CPAP every night, he would be expected to have a decline in cognitive functions and an increased risk of developing cardiovascular disease.  

8.  On 16 August 2004, the applicant's commander provided a written statement to medical staff regarding the applicant's condition.  The commander indicated that the applicant's condition first manifested in headaches which caused him to continually take sick leave, and he was missing at least 2 days a week due to headaches and excessive sleepiness.  He was diagnosed with OSA and prescribed the wear of a CPAP device.  The applicant could not go to the field and was restricted from wearing a gas mask while sleeping.  In addition, the applicant was diagnosed with high blood pressure, and was being treated for knee and ankle pain.  Because of his temporary profile, the applicant could not attend the required Joint Forces Headquarters field operation taskings, could not complete mandatory advanced weapons training, could not participate in the mandatory MOUT (Military Operations on Urban Terrain) training, or complete an Army Physical Fitness Test.  His assigned profile was 313121.  Further, because of his medical condition, the applicant gained 15 pounds.  When he was informed by his doctors of a potential MEB, he indicated that he was willing to get out of the military, but would miss the friends he made throughout the years.  Doctors recommended the applicant be released from the Army due to medical unfitness.

9.  On 24 August 2004, the applicant underwent an MEB.  He was diagnosed with OSA, right patellar tendonitis, and right ankle pain.  The applicant reported that on rare occasions, he nodded off while driving and once, in April 2004, he veered off the road, but did not suffer an accident.  The examiner noted in the History of Present Illness block, "Before these complaints, the service-member was evaluated in May 2004 in Albuquerque and found to have mild/moderate OSA.  He was placed on CPAP pressure therapy, and has done well since.  He has stopped snoring, and his daytime somnolence has essentially resolved.  He uses his CPAP machine faithfully each night without fail and awakens refreshed each morning."  

10.  Regarding the applicant's ankle condition, the MEB found he was asymptomatic unless he was required to run.  High right knee symptoms were minor and consisted of pain when running a mile, or stiffness with significant activity.  His symptoms of the right knee were the sequelae of Osgood-Schlatter's disease which could be addressed surgically, and his full functional recovery status post surgery, would be equivocal at best.  Surgery was not recommended at that time.  His Osgood-Schlatter's disease existed prior to entry into service and was aggravated by his service activities.  He was referred to a PEB for further adjudication because he did not meet retention standards.  

11.  Following the applicant's MEB, his doctor, on 22 October 2004, provided a progress report indicating that the applicant had difficulty acclimating to the regular use of CPAP.  He definitely had a moderate improvement in his daytime cognitive functions with the CPAP, but he was having difficulty using the CPAP effectively every night.  He requested that the applicant be given a three week leave of absence from work, so he could concentrate on addressing all the issues in using CPAP effectively and overcome the various obstacles he faced with the device.

12.  On 9 November 2004, the applicant's doctor provided another written summary of the applicant's condition at the request of the applicant.  He indicated that the applicant's treatment was not going well as he was having difficulty using the CPAP.  He could not fall asleep with the mask.  Therefore, he was in the process of trying a variety of interventions to make the CPAP more comfortable for the applicant, but without success.  Initially there was improvement, but his ability to sleep seriously declined.  The doctor's final alternative was to recommend oral surgery to attempt to cure the OSA, although the probability of cure is less than 75%.  Given his current condition, the doctor indicated that both he and the applicant had decided he was no longer able to continue working in the military due to the severe disruption of his sleep patterns by the OSA and his attempts to treat it.  The applicant is having increased difficulty with daytime performance due to the sleep disruption and he elected to retire from the military due to his medical condition.  

13.  The applicant was given convalescent leave from 15 November 2004 through 15 March 2005.  

14.  On 17 February 2005, the applicant's commander provided another evaluation of the applicant's performance.  He indicated the applicant had been unable to perform his duties as a member of the NMARNG.  Because of his ankle and knee condition, he could not perform APFT and his last APFT of record was in October 2003.  He had not performed his full time duties since his convalescent leave began on 23 October 2004, and his absence had a negative effect on the efficiency and overall mission accomplishment in his area of operation.

15.  On 3 March 2005, the applicant underwent a second MEB evaluation for his right ankle and knee pain.  The examiner noted that the applicant's right ankle symptoms were subsiding and he was asymptomatic unless he ran.  He was diagnosed with Osgood-Schlatter's disease, right knee, old, existed prior to service, aggravated by service; right patellar tendonitis; a bone spur with calcified cap in the insertion area of the patellar tendon; congenital pes planus valgus bilateral foot deformity, asymptomatic, existed prior to service, subjectively symptomatic; contracture of the bilateral Achilles tendon; and, a sprained right ankle, chronic, markedly improved and nontender.  The examiner recommended a permanent profile with walking and running at the applicant's own pace.  He was found unfit for retention because of pes planus valgus with associated symptoms.  

16.  On 10 March 2005, the applicant underwent another MEB directed by his command.  The MEB examiner noted the applicant was unable to use his CPAP device after trying different masks, different interfaces, changes to CPAP machine to an advanced model, and even trying treatment pressure adjustment.  The applicant underwent a multiple sleep latency test on 2 February 2005.  The study found profound sleepiness.  He was diagnosed with moderate OSA, and an inability to tolerate CPAP.  His prognosis was considered poor, and the doctor opined that it was unlikely that weight loss or airway surgery would improve his condition.  He was issued a permanent profile prohibiting driving any type vehicle, or handling any sensitive items, such as weapons, explosives, ammunition or cryptographic material.  The MEB found him unfit for duty due to OSA and referred him to a PEB.

17.  On 11 March 2005, the applicant agreed with the MEB's findings and recommendations.  

18.  On 4 April 2005, an informal PEB was convened at Fort Lewis, Washington. The PEB found him unfit for military service due to OSA requiring CPAP, chronic right knee pain, and chronic right ankle pain.  All conditions were rated as zero percent disabling.  The PEB indicated that CPAP was not being fully utilized and it was not clear why the applicant had non-complied with the recommended treatment.  Further, CPAP use required a reliable electric power supply and could not be easily employed outside the barracks or home environment.  Imaging of his right knee showed no degenerative joint disease, but that he had a prominent tibial tubercle and calcification extended into the patellar tendon from old Osgood-Schlatter's Disease.  On examination, the applicant had full range of motion and normal stability.  It was rated analogous to degenerative joint disease (DJD) with normal motion.  Imaging showed no DJD of the right ankle.  He had full motion and normal strength and stability.  It was rated analogous to DJD with normal motion.  The applicant nonconcurred with the findings and recommendation of the informal PEB and demanded a formal PEB.

19.  On 17 May 2005, the applicant appeared before a formal PEB with civilian counsel.  The PEB reached the same conclusions as in the informal PEB.

20.  On 26 May 2005, the applicant's counsel provided a rebuttal to the PEB and requested a reconsideration and/or new hearing.  He argued that the applicant's condition demonstrated that he suffers from moderate OSA with definite, if not considerable, occupational impairment, and that at a minimum, he should be rated as 30 percent disabled and placed on the TDRL.  In the alternative, the applicant's counsel argued that the applicant be provided with a statement of reasons for the PEB's final determination in accordance with federal statute.  He also expressed concern regarding some procedural issues:  The PEB President questioning the applicant about his congressional inquiry concerning problems he had relating to his first MEB; a PEB member speaking to the applicant's personnel branch, and the alleged prejudicially negative attitude the PEB chief had in questioning the applicant.  

21.  Counsel also responded to the PEB's expressed concern that the applicant had not done everything possible to resolve his OSA condition.  He argued that medical findings show that up to 30 percent of individuals prescribed CPAP are unable to adapt to the device.  Therefore, it was not the applicant's fault that he could not adapt to the device and he had made every reasonable effort to do so.  
22.  On 31 May 2005, the PEB President responded to the applicant's rebuttal.  After careful consideration, and a review of the applicant's case, the PEB adhered to its original findings and recommendations of the formal hearing.  The Board determined that the applicant's case was properly evaluated in accordance with Army Regulation 635-40 and U.S. Army Physical Disability Agency (USAPDA) policies.  He was rated 0 percent for OSA in accordance with DOD Instruction (DODI) 1332.39, paragraph E2.A1.2.2a because his condition was considered mild.  Mild in the referenced paragraph refers not to the medical description but to industrial impairment.  It was clear from the applicant's case file, particularly his Officer Evaluation Reports, that although his OSA may be unfitting for service in the field, it did not interfere significantly with his performance in a garrison or office environment, therefore there was little or no industrial impairment.

23.  In regards to counsel's procedural issues, the applicant's congressional inquiry was part of his case file from his earlier PEB in which he was found unfit.  However, the PEB's determination was made on the evidence in his current file, not his previous MEBs or PEB.  Further, there was no prejudice to his case as the Board's decision was based on the evidence in his current file.  The President indicated that the applicant's case would be forwarded to USAPDA for further review and processing, and the applicant was advised that if he had additional evidence to forward it for review by USAPDA.

24.  On 1 June 2005, the applicant's doctor provided a written statement to assist the applicant is his application for disability.  He indicated that around 30 percent of patients have difficulty using the CPAP on a regular basis.  For those patients unable to adapt to the CPAP, different types of treatment were recommended, such as an oral madibular advancement device, or oral surgery.  There are several types of surgery used for snoring and OSA.  Predicting a successful cure is impossible; however, the quoted surgical cure rate, is about 60 percent.  He projected that the likelihood that surgery would cure the applicant was about 75 percent.  

25.  On 16 June 2005, the applicant's counsel provided arguments on behalf of the applicant to USAPDA.  He argued that the PEB's conclusion that the applicant was not "industrial impaired" was erroneous.  He stated that the applicant was not referred to an MEB because OSA interfered with his service in the field, but because it interfered with his performance of duties in an office environment, as evidenced by the applicant's frequent morning headaches, extreme fatigue, drowsiness, and his inability to operate a motor vehicle.     

26.  In October 2005, the applicant underwent a surgical procedure called "septoplasty" due to a deviated septum.  The medical records of this procedure were not available for review; this evidence was provided by the applicant's counsel.  On 9 November 2005, the applicant underwent a sleep study which showed no evidence for OSA.  He achieved an 82 percent sleep efficiency.  However, sleep efficiency was reduced due to many brief awakenings after sleep onset.  Frequent spontaneous arousals were also seen.  The study was performed with the applicant wearing his oral device.  Mild to moderate snoring was heard occasionally and was at times terminated in arousal suggestive of respiratory effort related arousals as seen in the upper airway resistance syndrome.  The primary diagnosis was snoring, possible upper airway resistance syndrome and significant sleep disruption without obvious cause.  Given the presence of snoring with arousals and significant sleep disruptions, a CPAP device was again recommended.  

27.  The applicant's annual OER for the period 20010212 through 20020211 shows that he managed and supervised the functions of the SIDPERS and provided authoritative assistance and guidance to State level management, organizational and unit commanders, serviced units, warrants officer, officer and enlisted personnel, and their dependents.  His rater indicated that he performed his duties in a truly exemplary manner; he scored a 282 on his APFT; and recommended for promotion.  The senior rater indicated he was fully qualified; he was rated as center of mass; and performed his duties in an outstanding manner. The rater noted that his willingness to assist and train Soldiers was instrumental in maintaining quality service.  

28.  The applicant attended the Administrative Warrant Officer Advanced Course from 22 July – 2 August 2002.  His school academic evaluation report indicated that he achieved course standards with a grade point average of 90.44%.  He actively contributed to the preparation and presentation of numerous briefings during the end-of-course Brigade/Battalion Simulation Command Post Exercise. 

29.  The applicant's annual OER for the period 220201212 through 20030211 indicates that he passed the APFT in October 2002; his rater indicated that his performance was outstanding and was recommended for promotion.  The senior rater indicated that he was "Best Qualified," that he was a gifted computer technician; that during the rating period the State of NM mobilized Soldiers in support of Operation Nobel Eagle and Enduring Freedom, and the applicant and his Soldiers performed in a brilliant manner.

30.  The last available annual OER in the applicant's record was for the period 20030212 through 20040211.  Again, he was rated as outstanding, must promote, and as "Best Qualified" by his senior rater.  

31.  The objectives of the Army Physical Disability Evaluation System (PDES) system are to:  maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, and; provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, AR 40-501:  as evidenced in a medical evaluation board; receive a permanent medical profile and are referred by an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or are referred by the Commander, US Army Human Resources Command (HRC).  A service member is referred to a MEB by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply” or self-refer for evaluation by a MEB.

	a.  Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.

	b.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

	c.  Once a MEB determines the Soldier fails medical retention standards, the Soldier is referred to the PEB.  The PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  Three factors determine disability disposition: the rating percentage, the stability of the disabling condition, and total years of active Federal service. For service-incurred or aggravated conditions not involving misconduct, the dispositions are:  (1) Permanent disability retirement occurs if the condition is permanent and stable and rated at a minimum of 30 percent or the Soldier has 20 years active Federal service; (2) Temporary disability retirement occurs if the Soldier is entitled to permanent disability retirement except that the disability is not stable for rating purposes.  However, stability does not include latent impairment, that is what might happen in the future.  If placed on the TDRL, the Soldier is required to undergo a periodic medical reexamination within 
18 months, followed by another PEB evaluation.  The Soldier may be retained on the TDRL or final determination made.  While the law provides for a maximum tenure on the TDRL of 5 years, there is no entitlement to be retained for the entire period.

	d.  The PEB initially conducts an informal adjudication.  This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEBLO for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the US Army Physical Disability Agency (USAPDA) to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

32.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

33.  Army Regulation 635-40 also prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. A Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement but for the fact his or her disability is determined not to be of a permanent nature and stable.  

34.  Department of Defense Instruction (DODI) 1332.39 implements policy/assigns responsibilities and prescribes procedures for rating disabilities of Soldiers determined to be physically unfit and who are eligible for disability separation or retirement.  It states, in pertinent part, that sleep apnea syndromes are rated under the VASRD percentage rating options as 0, 30, 50 or 100 percent under VASRD Code 6847, corresponding to assessed levels of disability relative to civilian earning capacity.  The following interpretation will apply:
  
	Total industrial impairment				100%
	Considerable industrial impairment		   50%
	Definite industrial impairment			   30%
	Mild Industrial impairment				     0%

35.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the DVA, the Army msut first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

36.  The VASRD gives code 6847, sleep apnea syndrome (obstructive, central, mixed), a 100 percent rating with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or, requires tracheostomy; a 50 percent rating when it requires use of breathing assistance device such as CPAP machine; a 
30 percent rating with persistent day-time hypersomnolence; and 0 percent when asymptomatic but with documented sleep disorder breathing.

37.  The applicant was rated as 0 percent disabled under VASRD code 6847 for OSA requiring CPAP; CPAP not fully utilized with no reason given for non-compliance with the recommended CPAP treatment.  The PEB determined that his symptoms and profile prevent effective duty in his primary MOS.  Use of CPAP requires a reliable electric power supply and cannot be easily employed outside a barracks or home environment.  

38.  Department of Defense Instruction (DODI) 1332.39 stipulates that VASRD Code 5003, arthritis, degenerative, hypertrophic, and pain conditions rated by analogy to generative arthritis, will be rated as follows:

	a.  Each major joint (or grouping of minor joints) with objective limitation of motion plus radiographic evidence is rated at 10 percent.  (The bilateral factor applies.)

	b.  Radiographic evidence of two or more major joints or groups of minor joints, when accompanied by occasional exacerbations of incapacitating symptoms, is given a total rating of 20 percent.  Radiographic evidence alone without symptoms is rated at 10 percent.  (No bilateral factor applies.)

	c.  For rating purposes, combinations of interphalangeal, metacarpal-phalangeal, and metatarsal-phalangeal joints are groups of minor joints evquivalent to a major joint.  

39.  Diagnostic code numbers appearing opposite the listed ratable disabilities in the VASRD are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the VA, and extend from
5000 to a possible 9999.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built up."  The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. 

40.  U.S. Army Physical Disability Agency Policy/Guidance Memorandum Number 13, dated 28 February 2005, provides guidance for rating unfitting conditions that are manifested with pain with and without supportable medical findings for rating an underlying condition.  It stipulates, in relevant part, that pain is rated by intensity and frequency of pain.  Intensity (severity) of pain is rated as minimal, slight, moderate or marked.  Frequency of pain is rated as intermittent, occasional, frequent or constant.  When there is evidence of an underlying medical condition that is manifested by more than just pain, the underlying impairment should be rated.  Examples are fibromyalgia, osteoarthritis, bursitis, ligament tear, muscle tear, or previous muscle or bone injury.  A Soldier's total rating may exceed 20 percent and may include a separate rating for pain up to the maximum of 20 percent under 5099-5003.  When pain is rated as minimally intense, and frequency occurs intermittently, occasionally, frequently, or even constantly, a Soldier will be rated as 0 percent disabled.  A higher percentage rating is allowed when intensity of pain increases to slight, moderate, or marked.

41.  The applicant's knee and ankle conditions were rated under VASRD code 5099-5003, 0 percent disabling, rated analogous to degenerative joint disease, no radiographic findings, full range of motion and stability, with minimal intensity. 

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record supports the determination that the applicant's unfitting conditions were properly diagnosed and his disabilities were properly rated by the PEB in accordance with the above regulations.  His separation with severance pay was in compliance with law and regulations.  

2.  The applicant was not placed on the TDRL because he was not rated as being 30 percent disabled.  His OSA was rated 0 percent disabling because a CPAC device could not be utilized under austere conditions and because he was considered to be only mildly industrially impaired as demonstrated by his outstanding OERS.  His knee and ankle conditions were properly rated as
0 percent disabling based on no radiographic findings, full range of motion and stability, with minimal intensity.  His commander indicated that he could not attend the required Joint Forces Headquarters field operation taskings, could not complete mandatory advanced weapons training, could not participate in the mandatory mount training, or complete an Army Physical Fitness Test, all duties expected of a Soldier outside of an office environment.  However, his chain of command considered his performance in an office environment as exemplary and his OERs did not mention any unfitting medical conditions limiting the applicant's performance of duty.  

3.  Initially, the applicant's doctor opined that it was unlikely that weight loss or airway surgery would improve his condition.  At the time the applicant was appealing his formal PEB, his doctor indicated that predicting a successful cure for OSA was impossible; the quoted surgical cure rate, was about 60 percent.  He projected that the likelihood that surgery would cure the applicant was about 75 percent.  After his discharge, the applicant underwent a septoplasmy due to a deviated septum, which his counsel argues, cured his OSA.  However, sleep study performed after the applicant's surgery showed that sleep efficiency was reduced due to many brief awakenings after sleep onset.  Frequent spontaneous arousals were also seen.  The primary diagnosis was snoring, possible upper airway resistance syndrome and significant sleep disruption without obvious cause.  The applicant's recommended treatment was still the use of a CPAP device.  Given the above, there is no evidence the applicant was erroneously discharged before surgery could be accomplished.  There is no evidence the applicant requested surgery prior to his discharge and even after the applicant underwent surgery, he still has an undiagnosed condition which requires the use of a CPAP device.  

4.  There is no substantial new medical evidence to show the applicant meets Army retention standards as argued by the applicant's counsel.  Although the applicant's latest sleep study did not diagnose OSA, it indicates a possible airway resistance syndrome and significant sleep disruption without obvious cause requiring continued use of a CPAP device.  There is no medical evidence to show the applicant's knee and ankle condition have changed since these conditions were found unfitting by the PEB.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is no justification to reinstate the applicant in the NMARNG or place him on the TDRL.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__cg____  __mjf___  __eem___  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.




							Curtis Greenway
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060008719
SUFFIX

RECON

DATE BOARDED
20070412
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
20050731
DISCHARGE AUTHORITY
AR 635-40
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.3100
2.

3.

4.

5.

6.