IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090011676 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through counsel, reconsideration of his case by directing that his medical records be forwarded to a Medical Evaluation Board (MEB) to consider his sleep apnea.

2.  The applicant states, through counsel, that his sleep apnea was never considered by his MEB or his Physical Evaluation Board (PEB) even though he had a consult and, subsequently, studies were ordered to evaluate him for sleep apnea.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), MEB Proceedings, PEB Proceedings, and medical records.   

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080004494, on 15 July 2008.

2.  An advisory opinion obtained from the U.S. Army Physical Disability Agency (USAPDA) is new evidence which requires the Board to reconsider the applicant's request.


3.  The applicant's military records show that having prior active and inactive service, the applicant enlisted in the Regular Army on 28 July 2000.  

4.  On 16 September 2004, the applicant was referred to an MEB and stated “My chief complaint is I have two bad knees and I have been trying to do the right things to help them get better.”  His MEB Narrative Summary also states, in pertinent part, “History of excessive snoring.  Sleep apnea is being ruled out with a sleep study and ENT [Ears, Nose, and Throat] has been consulted.”     

5.  A Commander’s Performance Statement, dated 16 September 2004, states, in pertinent part, that the applicant’s assigned limitations were the inability to move with a fighting load at least 2 miles, the inability to perform the Army Physical Fitness Test (APFT) 2 mile run, and the inability to stand for prolonged periods of time. 

6.  On 29 September 2004, an MEB diagnosed the applicant with bilateral retropatellar pain syndrome.  He was referred to a PEB.  On 8 October 2004, the applicant agreed with the findings and recommendation of the MEB.

7.  On 20 October 2004, an informal PEB found the applicant physically unfit due to bilateral knee pain of insidious onset since 2000.  The informal PEB recommended a combined rating of 0 percent and that the applicant be separated with severance pay.  As recorded in the Board's original consideration of this case, on an unknown date the applicant agreed with the findings and recommendation of the PEB. 

8.  On 15 November 2004, a sleep study was conducted and the applicant was diagnosed with obstructive sleep apnea.

9.  On 21 December 2004, the applicant was honorably discharged by reason of physical disability, severance pay.

10.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform 
the duties of his office, grade, rank or rating in such a way as to reasonably fulfill 
the purposes of his employment on active duty.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  



11.  Army Regulation 635-40 states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

12.  Army Regulation 635-40 states the Narrative Summary to the MEB is the heart of the disability evaluation system.  In describing a Soldier’s conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.

13.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

14.  Title 10, U.S. 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.

15.  In the processing of this case an advisory opinion was obtained from the USAPDA who confirmed that the applicant was diagnosed with sleep apnea in October 2004 and that the newly diagnosed condition should have been added to the MEB and considered by the PEB before the applicant's separation.  However, the USAPDA stated that there is no evidence that the PEB would have found the applicant's sleep apnea unfitting since the only condition reported by the applicant to cause him problems performing his duties were his knees; he had no physical profile limitations due to sleep apnea; his commander did not mention any limitation caused by sleeplessness; and his evaluation reports all show the applicant successfully completed his assigned duties.  The USAPDA adds that at the time, a requirement for a Soldier to have easy access to facilities to continue to use his CPAP machine would not be used as a sole basis for a finding of unfit. Since there was no basis for a finding of unfitness for the applicant's sleep apnea, there is no reason to believe that if it had been added to his MEB and considered by the PEB it would have changed his disability rating.



16.  The applicant was provided a copy of the advisory opinion and his counsel submitted a rebuttal in which he said that since the applicant's case was not recalled for a full analysis of his sleep apnea while he was on active duty, the Government can only speculate as to its severity.  Counsel concludes that relief should be granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through counsel, contends that his sleep apnea was never considered by his MEB or his PEB even though a consult and, subsequently, studies were ordered to evaluate him for sleep apnea.    

2.  Evidence of record shows the applicant’s MEB Narrative Summary states, in pertinent part, that “Sleep apnea is being ruled out with a sleep study.”  

3.  The Commander’s Performance Statement indicates the applicant’s assigned limitations were the inability to move with a fighting load at least miles, the inability to perform the APFT 2 mile run, and the inability to stand for prolonged periods of time.  The applicant’s chief complaint at his MEB was his bad knees.  Evidence of record shows the MEB diagnosed the applicant with bilateral retropatellar pain syndrome.  The applicant agreed with the findings and recommendation.

4.  Therefore, while a sleep study diagnosed the applicant with obstructive sleep apnea prior to separation, and the diagnosis was inadvertently omitted from his MEB and PEB, there is no evidence or indication that if those omissions had not been made the applicant would have received a higher disability rating.  Simply put, there is nothing in the applicant's record which would show his sleep apnea precluded him from performing his duties.  As such, counsel's contention that the Government can only speculate on the severity of the applicant's sleep apnea is not relevant to this case.  Unfitness is determined by a Soldier's ability to perform his duties.  There is no legal requirement for arriving at the rated degree of incapacity of a rated physical condition which is not in and of itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  

5.  There is insufficient evidence to show the applicant’s PEB disability rating was incorrect, or that the recommendation for severance pay was not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant’s request. 



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ____X___  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 to amend the decision of the ABCMR set forth in Docket Number AR2008004494, dated 15 July 2008.




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090011676



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ABCMR Record of Proceedings (cont)                                         AR20090011676



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