BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130015455 


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 a review of his medical evaluation processing under the Integrated Disability Evaluation System (IDES). 

2.  The applicant states he was separated from the Army under a diagnosis that was not supported by facts or medical evidence.  He believes he should be given an additional evaluation and reconsideration under a medical board.  The medical evaluation board (MEB) physician changed the medical condition that was unfitting without notifying him or his case manager.  He was subsequently separated for disability without a confirmed diagnosis or evaluation by the Department of Veterans Affairs (VA) under the IDES.  He was initially referred to an MEB for Idiopathic Hypersomnia.

3.  The applicant states: 

	a.  He had a confirmed diagnosis from his Neurologist, Dr. M. A-i (letter dated 18 July 2012), at North Country Neurology and from Diagnostic Nocturnal Polysomnography through the Samaritan Medical Center by Dr. L. K----r providing a diagnosis for Obstructive Sleep Apnea with persistent Hypersomnia.  The physical disability evaluation system (PDES) Narrative Summary (NARSUM), dated 15 May 2012, states in paragraph 5, the "Conditions Found to Fail to Meet Retention Standards," Diagnosis 1:  Narcolepsy without Cataplexy."  In item (b) the physician provides an analysis of the diagnosis and references "According to "Up To Date" last literature review May 2011, the diagnostic criteria are…."  Within that he, the physician, does not reveal what the term "Up To Date" exactly is or means.  It is unclear whether this analysis is a peer-reviewed periodical or simply an internet blog that posts information.

	b.  Under item 9, Reconciliation of Apparent Inconsistencies, Dr. M---y states: "The service member was referred for a condition of Hypersomnolence for which no diagnosis was rendered by the VA Compensation and Pension examiner.  When queried, the VA responded that the, condition was felt by the examiner to be a residual of his adjustment disorder.  "The examiner is a Nurse Practitioner and although qualified to do an examination for the VA, he (the applicant) questions her "feelings" regarding a diagnosis which was already confirmed by diagnostic testing by a board certified neurologist. 

	c.  If it was "felt" the diagnosis should be changed, then the MEB should have ordered a specific examination for Narcolepsy which is well within the ability of the VA DES to perform.  As the Board can see from the NARSUM and attached VA examination, a specific examination for Narcolepsy was not accomplished.  This severely impacted the MEB and VA determination.  If one looks at the DBQ sheet for the examination, section 4 details information that impacts the rating for Narcolepsy, especially item 4c frequency of cataplectic episodes.

	d.  DOD Instruction (DODI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities (VASRD)), E2.A1.4.1.5, Code 8108 (Narcolepsy) refers to VASRD disability ratings Code 8911 (Epilepsy, petit mal) and gives percentages of assessed level of disability related to civilian earning capacity.  Code 8911, Petit Mal, provides for ratings based on major and minor seizures "brief interruption in consciousness or conscious control."  If an examination has not been accomplished then how can it be determined that he did not meet the criteria for a rating higher than provided in Note (1) continuous medication?  Also, the VA-proposed rating even mentions "daily episodes".  He (the applicant) believes their rating to be erroneous as well when they didn't provide a higher evaluation as prescribed by 4.124a.  He believes the Army erred in the MEB when it (1) changed the diagnosis, (2) did not request a diagnosis for the condition that resulted in a rating and separation, and (3) ignored medical evidence to the contrary. 

5.  The applicant provides:

* VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim)
* Letter, dated 18 July 2012, from Dr. A-i
* Samaritan Medical Center Report, dated 2 June 2010
* Psychological examination report, dated 19 March 2012
* Hearing evaluation report, dated 9 March 2012
* PDES Consolidated NARSUM, dated 15 May 2012
* DA Form 199 (Informal Physical Evaluation Board (IPEB) Proceedings)
* Statements from his spouse
* Letter from the Military Order of the Purple Heart
* Extract of DODI 1332.29
* VA rating decision and related VA medical documents

CONSIDERATION OF EVIDENCE:

1.  For the purpose of understanding the key concepts of this case, the Boards staff provides the following definitions: 

* Narcolepsy:  a chronic brain disorder that involves poor control of sleep-wake cycles; may occur with or without cataplexy
* Cataplexy:  sudden loss of muscle tone and power in response to strong emotion 
* Idiopathic Hypersomnia:  a neurological disorder that is characterized by excessive daytime sleepiness
* Obstructive Sleep Apnea:  occurs when there are repeated episodes of complete or partial blockage of the upper airway during sleep
* Hypersomnolence:  a sleep-wake disorder; excessive unintentional sleepiness

2.  The applicant's records show he enlisted in the Regular Army on 20 April 2006 and he reenlisted on 2 October 2009.  He held military occupational specialties (MOS) 92Y (Unit Supply Specialist) and 52D (Power Generation Equipment Repairer). 

3.  He served in Iraq from 4 May 2007 to 31 July 2008 and in Afghanistan from 13 October 2010 to 14 June 2011.  He was promoted to sergeant (SGT)/E-5 on 1 October 2009. 

4.  On 2 June 2010, the applicant underwent a daytime study at Samaritan Medical Center, Watertown, NY, due to his underlying Obstructive Sleep Apnea and persistent Hypersomnia.  The impression was that of abnormal Multiple Sleep Latency Test (MSLT) with underlying Hypersomnia.  The doctor recommended further clinical correlation. 

5.  On 23 June 2010, the applicant returned to the clinic complaining of excessive daytime somnolence despite Continuous Positive Airway Pressure (CPAP) use.  The diagnostic study is shown as nocturnal polysomnography and the impression as Obstructive Sleep Apnea, palliated with CPAP at 11cm of water pressure, and Hypersomnia.  

6.  On 6 February 2012, the applicant signed a VA/DOD Joint Disability Evaluation Board Claim for the medical condition of Idiopathic Hypersomnia, the medical condition to be considered as the basis of a fitness for duty determination. He also listed multiple additional conditions that he felt were service-connected.

7.  On 15 February 2012, he underwent a VA C&P general medical examination. A summary of his medical conditions is as follows: 

* Obstructive Sleep Apnea with CPAP, onset 2007/2008
* Migraines, onset 2006
* Back pain, onset 2007
* Bilateral knee pain, onset 1988
* Neck pain, onset 2011
* High cholesterol, onset 2010
* Gastroesophageal Reflux Syndrome (GERD), onset 2009
* Right axis deviation of heart, onset 2009
* Allergies, onset 2010
* Exercise-Induced Asthma, onset 2008
* Diverticulitis, onset 2011

8.  On 29 February 2012, he underwent a thorough hearing examination/ evaluation after he complained of symptoms of constant bilateral tinnitus.  After examination, Dr. S----n, Watertown Audiology, Watertown, NY, diagnosed him with constant tinnitus laterally but no hearing loss and his condition did not affect his usual occupation or daily activities. 

9.  On 19 March 2012, he reported to Dr. F-d , Watertown, NY, for an evaluation related to Anxiety and Adjustment Disorder.  His diagnosis was as follows: 

* Axis I: Adjustment Disorder with Mixed Anxiety and Depressed Mood
* Axis II: No diagnosis
* Axis III: Knee and back pain; allergies; migraine headaches
* Axis V: No specific stressors reports
* Axis V: Global Assessment of Functioning (GAF) score of 85

10.  On 15 May 2012, he underwent a physician-directed MEB evaluation.  His NARSUM stated he has multiple conditions that meet retention standards.  He also had had adequate evaluation for the diagnoses noted in paragraph 5 (Conditions Found to Fail to Meet Retention Standards) to reliably predict the course of these conditions and it is unlikely that any further interventions for these conditions will return him to duties consistent with their rank and MOS.  The information contained in this NARSUM reflects the Soldier’s condition as of the date prepared.  His diagnosis is Narcolepsy without cataplexy, fails to meet retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-30, onset of condition is gradual in February of 2010.  

	a.  Relevant History:  He has tried multiple stimulants over the past year and a half.  For the past 3 months, he continues with morning Adderall and afternoon Concerta.  He uses nightly CPAP at a stable 11cm of water pressure for more than 4 hours per night.  Impact of treatment: for more than 6 months, despite pharmacotherapy and use of nightly CPAP, he works limited duty hours.  Serial medical profilers have written for Soldier not to work more than 8 hours during a 24-hour period including the lunch period.  His symptoms and physical examination are reflected in the VA C&P examination.

	b.  Diagnosis.  On 1 June 2010, he had a nocturnal polysomnography with 413.5 minutes of total sleep followed by an MSLT.  Four nap events were recorded.  The mean sleep latency was 2.4 minutes.  No sleep onset rapid eye movement (REM) was identified.  During one event N3 sleep was identified.  According to "Up-to-date," last literature review May of 2011, the diagnostic criteria for Narcolepsy without cataplexy are: Chronic sleepiness accompanied by an MSLT showing an average sleep latency less than eight minutes and/or at least two SOREMS and alternative etiologies have been excluded by history, exam and polysomnography (e.g., untreated sleep apnea, PLM d/o, insufficient sleep (at least of 6 hours of sleep required for valid MSLT), and sedating medication.  The Soldier clearly meets the criteria for Narcolepsy without cataplexy.  He is unable to work beyond an 8-hour duty day and he is unable to perform the duties and responsibilities of the assigned MOS due the limitations specified above.  

	c.  Prognosis Statement:  It is not expected that the Soldier's disability will significantly change in the next one to five years.  Application of AR 40-501, paragraph 3-30, he has a diagnosis of Narcolepsy, sleepwalking or similar disorder requiring referral for an MEB.  

	d.  Reconciliation of apparent inconsistencies:  The applicant was referred to the VA for a condition of Hypersomnolence for which no diagnosis was rendered by the VA C&P examiner.  When queried, the VA responded that the condition was felt by the examiner to be a residual of his adjustment disorder.  After a review of the medical record the MEB feels there is more than adequate evidence to give the diagnosis of Narcolepsy without cataplexy.

11.  On 15 May 2012, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions.  
Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Narcolepsy without cataplexy

X
2.  Adjustment disorder with mixed anxiety and depressed mood
X

3.  Tinnitus
X

4.  Obstructive sleep apnea
X

5.  Migraine headaches
X

6.  Degenerative disc disease of the lumbosacral spine
X

7.  Bilateral degenerative disc disease of the knees
X

8.  Cervical strain 
X

9.  Hypercholesterolemia 
X

10.  GERD
X

11.  Allergic rhinitis
X

12.  Exercise-induced asthma
X

13.  Enteritis
X

14.  Intermittent bilateral hand strain
X

12.  On 18 May 2012, the applicant agreed with the MEB's findings and recommendation.  He acknowledged he had reviewed the contents of the MEB packet and read the DA Form 3947 (MEB Proceedings), NARSUM, and DA Form 3349 (Physical Profile):

* in regard to the issues relating to fitness for duty and disability compensation, he understood that the PEB would consider and review only those conditions listed on the MEB
* the DA Form 3947 includes all his current medical conditions and whether or not they meet medical retention standards
* the conditions which do not meet medical retention standards are properly listed on the MEB, NARSUM, and physical profile
* all documentation of military care in his possession have been provided to the PEB Liaison Officer (PEBLO) for inclusion in the MEB
* he agrees that this MEB accurately covers his medical conditions
* if he did not agree, he would provide a statement (he agreed) 


13.  On 8 July 2012, Dr. A-i of North County Neurology, Watertown, NY, rendered a statement indicating the applicant is a patient of his and was under his care for Idiopathic Hypersomnia which is a lifelong condition similar to Narcolepsy without cataplexy.  He has daily episodes of excessive sleepiness which would be worse without medications. 

14.  In or around July 2012, the VA completed his IDES rating and provided a proposed VA rating decision to his service (Army).  

	a.  For his unfitting disability, the VA proposed a 10% rating for Narcolepsy without cataplexy (MEB diagnosis) (also claimed as Idiopathic Hypersomnia).  He was assigned a 10% evaluation based on continuous medication shown necessary for the control of epilepsy.  A higher rating of 20% is not warranted unless he has had at least one major seizure in the past 2 years or has had at least 2 minor seizures in the past 6 months.  

	b.  For his service-connected medical conditions, the VA proposed:

* Obstructive Sleep Apnea, claimed as exercise-induced asthma, 50%
* Degenerative disc disease, lumbar spine, claimed as back pain, 10%
* Tinnitus, 10%
* Adjustment Disorder with mixed anxiety and depressed mood, 10%
* Right hand strain, left hand strain, cervical strain, right knee degenerative disc disease, left knee degenerative disc disease, allergic rhinitis, enteritis, GERD, and migraines, 0% each 

15.  On 28 September 2012, the VA reconsidered his case under the IDES.  The VA provided a disability determination.  

	a.  For the purpose of DES, the VA proposed a 10% rating for the condition of Narcolepsy without cataplexy (MEB diagnosis) (also claimed as Idiopathic Hypersomnia).   

	b.  For purposes of VA service-connected disability compensation, the VA proposed to increase the evaluation of Narcolepsy without cataplexy to 10% disabling. 

16.  On 5 November 2012, his case was adjudicated as part of the IDES under the 19 December 2011 Policy and Procedure Directive-type Memorandum (DTM) 11-015.  His IPEB shows: 

	a.  Recommended Disposition:  The IPEB finds the Soldier is physically unfit and recommends a rating of 10% and that his disposition be separated with severance pay.  

	b.  Disability:  VASRD Code 8108, Narcolepsy without cataplexy (MEB diagnosis) (also claimed as Idiopathic Hypersomnia) PEB referred as Narcolepsy without cataplexy (MEB Diagnosis 1); Non-battle condition; onset gradual first being addressed in February 2010.  In accordance with DODI 1332.38, E3.P3.2.2, the PEB determined that continued exposure to the rigors of military service would create an unreasonable risk to the Soldier’s health and would also impose unreasonable requirements on the Army to maintain the Soldier’s health. (NARSUM; C&P Exam, VA Proposed Rating Decision)

	c.  Medical conditions determined not to be unfitting: 

		(1)  Obstructive Sleep Apnea (MEB Diagnosis 4); this condition, although mentioned on the DA Form 3349, meets medical retention standards as reflected on the DA Form 3947 and has been found to be not unfitting when considered either independently or in combination with other conditions.  Additionally, it was not commented upon by the commander as hindering the Soldier’s performance of assigned duties.

		(2)  Tinnitus (MEB Diagnosis 3); Migraine headaches (MEB Diagnosis 5); Degenerative disc disease of the lumbosacral spine (MEB Diagnosis 6); Bilateral Degenerative Joint Disease of the knees (MEB Diagnosis 7); Cervical strain (MEB Diagnosis 8); Hypercholesterolemia (MEB Diagnosis 9); GERD (MEB Diagnosis 10); Allergic rhinitis (MEB Diagnosis 11); Exercise-induced asthma (MEB Diagnosis 12); Enteritis (MEB Diagnosis 13); and Intermittent bilateral hand strain (MEB Diagnosis 14) are all conditions which meet medical retention standards as reflected on the DA Form 3947 and have been found to be not unfitting when considered either independently or in combination with other conditions.  They were not listed on the Physical Profile as limiting any of the Soldier’s functional activities, and they were not commented upon by the commander as hindering the Soldier’s performance of assigned duties.  

		(3)  Adjustment disorder with mixed anxiety and depressed mood (MEB Diagnosis 2) does not constitute a physical disability and is not compensable (DODI 1332.38, E5.1.3.9.4.).

17.  On 14 November 2012, after having been counseled by the PEBLO, the applicant concurred with the IPEB's findings and recommendations and waived his right to a formal hearing of his case.  Furthermore, he elected not to request reconsideration of his VA rating. 
18.  On 19 November 2012, the applicant completed a DA Form 4187 (Personnel Action) and requested separation with disability with entitlement to severance pay.  

19.  The applicant was discharged on 26 January 2013 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 by reason of disability, non-combat, with entitlement to severance pay.  

20.  He submitted a statement, dated 15 July 2013, from a State Veterans Counselor, New York State Division of Veterans Affairs, who stated he submitted additional documents to the VA to be added to his claim.  He pointed out that there is a diagnosis of Idiopathic Hypersomnolence verified by a neurological examination conducted in August 2010.  Additionally, the VA rating indicated there is no Narcolepsy diagnosed and in the prognosis, it stated it is unlikely that any further therapy will improve Soldier's ability in the next 1 to 5 years.  Furthermore, since the MEB believed that Narcolepsy existed as the disqualifying condition, the MEB should have asked for clarification from a board certified neurologist to provide that assessment.  Instead, the MEB relied on a review of some online document and a conversation between the MEB president and the VA examiner.  The MEB changed the reason for the medical board referral and evaluation on scant medical evidence.  

21.  DTM 11-015 explains the IDES.  It states: 

	a.  The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments.  Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda.  All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances.  Service members whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA C&P standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. 

	d.  Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition.  For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process.  If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.

22.  DODI 1332-39 states in E2.A1.4.1.5. VASRD Code 8108. Narcolepsy.  The VASRD defers the determination of disability ratings to code 8911 (epilepsy, petit mal).  The latter code lists five percentage rating options for minor seizures: 10%, 20%, 40%, 60%, and 80% corresponding to assessed levels of disability relative to civilian earning capacity due to the subject condition.  The following interpretation will apply: 

* Profound industrial impairment 80%
* Severe industrial impairment 60%
* Considerable industrial impairment 40%
* Definite industrial impairment 20%
* Mild industrial impairment 10%
DISCUSSION AND CONCLUSIONS:

1.  After consideration of clinical records, laboratory findings, or physical examination, the applicant was diagnosed with the medical condition of Narcolepsy without cataplexy that failed to meet retention standards in accordance with paragraph 3-30 of AR 40-501.  This diagnosis was listed on his May 2011 NARSUM. 

2.  The NARSUM also states he was referred to the VA for a condition of 
hypersomnolence for which no diagnosis was rendered by the VA C&P examiner.  When queried, the VA responded that the condition was felt by the examiner to be a residual of his adjustment disorder.  After a review of the medical record, the MEB felt there is more than adequate evidence to give the diagnosis of Narcolepsy without cataplexy.

3.  Not only did he agree with the MEB's findings and recommendation, he also acknowledged he had reviewed the contents of the MEB packet and read the MEB Proceedings, NARSUM, and physical profile.  He also understood the PEB would consider and review only those conditions listed on the MEB, that the MEB includes all his current medical conditions and whether or not they meet medical retention standards, and that the conditions which do not meet medical retention standards are properly listed on the MEB, NARSUM, and physical profile.  He also understood that this MEB accurately covers his medical conditions and that if he did not agree, he would provide a statement. 

4.  His case was processed under the IDES.  This means he underwent a C&P examination by the VA and upon completion, the VA proposed a disability rating for the unfitting condition to the military department and a proposed disability rating for other service-connected disabling conditions to the member, if applicable.  

5.  The VA proposed a rating of 10%.  The IPEB accepted and adopted this rating for VASRD Code 8108, Narcolepsy without cataplexy.  In accordance with DODI 1332.38, E3.P3.2.2, the IPEB determined that continued exposure to the rigors of military service would create an unreasonable risk to the Soldier’s health and would also impose unreasonable requirements on the Army to maintain the Soldier’s health.  He was counseled and not only did he concur and waive his right to a formal hearing, he also elected not to request reconsideration of his VA rating.  

6.  He has provided insufficient evidence that the condition of his Narcolepsy without cataplexy is the wrong condition or that the MEB should have listed any other condition.  The IPEB's findings are supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  

7.  The applicant's integrated disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the IPEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief.

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 for correction of the records of the individual concerned.




      _______ _ 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)                                         AR20130015455



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ABCMR Record of Proceedings (cont)                                         AR20130015455



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