RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01581
BRANCH OF SERVICE:  Army	BOARD DATE:  20150204
SEPARATION DATE:  20041221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Heavy Wheel Vehicle Mechanic) medically separated for sleep apnea syndrome and left knee pain.  The conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards.  He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The sleep apnea syndrome and knee condition, characterized as “obstructive sleep apnea” and “chronic left knee pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the obstructive sleep apnea (OSA) and left knee pain as unfitting, rated 0% and 10%, respectively.  The OSA was rated citing criteria of the DoDI 1332.39; the left knee was rated citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI appealed to the Formal PEB, which affirmed the PEB findings and ratings and the CI was medically separated.

CI CONTENTION:  “I was rated at 50% by the V.A. for my sleep apnea and 10% for my left knee pain and the V.A. has rated me at 30%.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service FPEB – Dated 20041019	VA - (1.5 Mos. Post-Separation and
Service Treatment Records (STR))  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Knee Pain, Status Post Surgery…	5099-5003	10%	Traumatic Arthritis, Left Knee, S/P ORIF for Fracture Medial Femoral Condyle	5010	10%	20050513	
Obstructive Sleep Apnea, Requiring Nightly Use of CPAP.	6847	0%	Obstructive Sleep Apnea, S/P
Uvulopalatopharyngoplasty	6847	50%	STR	
Other x 0 (Not in Scope)	Other x 6	
Rating:  10%	Rating:  60%	
Derived from VA Rating Decision (VARD) dated 20050708.

ANALYSIS SUMMARY:

Left Knee Condition.  The narrative summary (NARSUM) noted that the CI injured his left knee in a sports activity for physical training and developed persistent swelling.  Imaging of the knee in July and August 2003 including X-rays, CT, and magnetic resonance imaging showed an osteochondral (bone and cartilage) defect of the medial femoral condoyle (prominence of the femur on the inside of the knee).  The CI had surgery on 9 December 2003 with placement of three screws to secure the bone and cartilage fragments.  Repeat X-rays after surgery noted a protruding screw and mild to moderate degenerative joint changes.  During a second arthroscopy to the remove the screw on 31 March 2004, a small tear of the medial meniscus was repaired and all ligaments were noted to be intact.  Following the surgery the knee pain was improved, but did not completely resolve.  At eight consecutive treatment visits after the last surgery, full range-of-motion (ROM) with no swelling, locking, or instability of the knee was noted and the CI intermittently reported mild to moderate pain.  At a visit on 23 September 2004, 3 months prior to separation, the CI reported intermittent locking, but the examiner noted no locking and was unable to reproduce the pain with exam maneuvers.  The CI reported that he fell on his knee in late November 2004 and the exam noted “instability,” without further expansion.  At a follow-up visit the next week the CI reported pain and giving out of his knee.  The examiner noted some mild swelling and minimal tenderness below the patella with a “tendency to sublux medially” and the CI was given a soft knee brace with a patella cut–out.

At the MEB examination on 17 June 2004, 6 months prior to separation, the CI reported left knee pain.  The MEB examiner noted the CI was using a crutch for partial weight bearing since the second arthroscopy and was still in physical therapy.  The MEB physical exam noted knee ROM of extension-flexion 0 degrees-120 degrees, with stable ligaments.

At the VA Compensation and Pension (C&P) examination on 13 May 2005, 5 months after separation, the CI reported knee pain and swelling, with occasional giving way, with flare-ups about once per week.  He reported he had not missed work, but had recently changed jobs allegedly due to his knee symptoms.  The examiner noted the CI was not using any assistive device for ambulation and there were no reported episodes of recurrent dislocation or subluxation.  The examination noted normal posture and gait.  There was crepitus with movement of the patella and the CI denied pain.  ROM was extension-flexion of 0 degrees-125 degrees with pain on flexion and there was no additional limitation of ROM with repetition.  The examiner noted stable anterior and posterior cruciate ligaments and “some laxity” of the medial and lateral collateral ligaments, but there was no instability or abnormal movement noted, and no evidence of symptomatic meniscal injury.  Left knee X-rays noted the osteochondral defect and degenerative changes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the knee condition 10%, coded 5099-5003 (analogous to degenerative arthritis) and cited the USAPDA pain policy.  The VA also rated it 10%, coded 5299-5260 (analogous to limitation of leg flexion) and cited painful motion.  The Board agreed that the evidence in record supports a 10% rating with multiple applicable §4.71a codes with consideration of VASRD §4.59 (Painful motion).  The Board reviewed to see if a higher evaluation was achieved with any alternative §4.71a code, but there was no evidence of compensable limitation of ROM, instability, symptoms related to semilunar cartilage, or nonunion or malunion of the femur, tibia, or fibula.  Although the C&P examiner reported “some laxity” of the ligaments on the sides of the knees, no instability or abnormal movement was noted; all ligaments were noted to be intact at both surgeries; and, there was no history of episodes of dislocation or subluxation.  The Board concluded that the evidence does not support a rating greater than 10% or a separate rating for instability, and that neither the PEB’s choice of VASRD code, nor reliance on the USAPDA pain policy was detrimental to arriving at the highest achievable rating IAW VASRD §4.71a.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left knee condition.

Sleep Apnea Syndrome.  The NARSUM notes the CI was diagnosed with OSA in 1990 while in the Navy.  He underwent surgery in November 1990 to reduce airway obstruction.  The CI returned to duty but continued to report daytime sleepiness and snoring and initially a repeat sleep study noted residual OSA, but reflux esophagitis and other facial anatomic considerations were thought to be contributing factors and they were evaluated and treated.  In 1993 another sleep study performed to evaluate persistent loud snoring was negative.  In May 2003 the CI again sought evaluation for increased OSA symptoms and a sleep study was positive.  He was started on continuous positive airway pressure (CPAP) treatment with improvement of his OSA.  Otorhinolaryngology (ear, nose, and throat specialist-ENT) consult for the MEB on 26 March 2004 noted the CI was happy with his CPAP machine and felt well rested and recommended continuation of CPAP treatment indefinitely.

At the MEB examination on 17 June 2004, 6 months prior to separation, the CI reported he was sleeping better with CPAP and had increased energy and alertness.  The MEB physical exam note the CI had a thick neck with a large tongue.  The DD Form 2808, Report of Examination, noted normal examination of the heart and lungs.  At the VA C&P examination on 13 May 2005, 5 months after separation, the CI reported use of CPAP with occasional daytime sleepiness and pertinent examination was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA with CPAP condition 0%, coded 6847 (Sleep apnea syndromes) and cited DoDI 1332.39.  The VA rated the OSA 50%, also coded as 6847.  The applicant was diagnosed with recurrent OSA following surgery and required use of CPAP to manage his symptoms.  Therefore, IAW VASRD §4.97 (Schedule of Ratings, Respiratory System) 6847 rating criteria the evidence supports that the OSA condition meets the 50% rating specified as “requires use of breathing assistance device such as continuous positive airway pressure (CPAP) machine, but does not meet the next higher evaluation of 100% which requires evidence of respiratory failure, cardiac effects, or tracheostomy.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the OSA condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, the PEB relied on the USAPDA pain policy for rating the knee condition and DoDI 1332.39 for rating the OSA condition in this case and the conditions were adjudicated independently of them by the Board.  In the matter of the knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Left Knee Pain Condition	5099-5003	10%	
Obstructive Sleep Apnea	6847	50%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131014, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150009851 (PD201301581)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the of the memorandum:

	a.  Providing a correction to the individual’s separation document  showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 60% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl			
CF: 
(  ) DoD PDBR
(  ) DVA