RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00094	
BRANCH OF SERVICE:  Army	 BOARD DATE:  20150421
SEPARATION DATE:  20040322		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Light Vehicle Mechanic) medically separated for obstructive sleep apnea (OSA) and chronic joint pain of the left wrist and bilateral knees.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3/L3/U3 profile and referred for a Medical Evaluation Board (MEB).  The OSA and chronic joint pain conditions, characterized as “obstructive sleep apnea,” “bilateral left knee,” and “chronic left wrist pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as unfitting.  The MEB also identified and forwarded one other condition (umbilical hernia) for PEB adjudication.  The Informal PEB adjudicated “obstructive sleep apnea” and “chronic joint pain involving the left wrist and bilateral knees” as unfitting, rated 0% and 0%.  The remaining condition was determined to be not unfitting.  The CI initially requested a Formal PEB, but changed his mind and later withdrew the demand accepting the IPEB ratings.  The CI made no further appeals, and was medically separated. 

CI CONTENTION:  “I received 0% when I received 80% from the VA.  Furthermore I was less than 9 months from retirement eligibility.”

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 IPEB – Dated 20031027	VA - (1 Mos. Pre -Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obstructive Sleep Apnea	6847	0%	Obstructive Sleep Apnea w/ Fatigue	6847	50%	20040212	
Chronic Joint Pain Involving Lt Wrist and Bilateral Knees	5003	0%	Residuals to Lt Wrist Fx	5215	10%	20040212	
			Lt Knee Laxity	5257	10%	20040212	
			Rt Knee Laxity	5257	10%	20040212	
			Residuals Lt Knee S/P Arthroscopic Surgery	5010-5261	10%	20040212	
Umbilical Hernia	Not Unfitting	Residuals Umbilical Herniorraphy	7338	10%	20040212	
Other x 0 (Not In Scope)	Other x 12	
Combined:  0%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20040909 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

OSA.  Treatment records evidence that in September 2001 the CI presented with daytime fatigue and only sleeping 3 hours per night.  He was diagnosed with a sleep disorder and treated with Ambien.  Pulmonary function tests performed 11 January 2002 were normal.  A polysomnogram dated 22 January 2002 confirmed a diagnosis of obstructive sleep apnea (OSA).  The CI was treated with continuous positive airway pressure (CPAP) ventilation therapy with resolution of his daytime fatigue.  An otolaryngology note dated 15 May 2003 documented that the CI did not desire surgical intervention.  The narrative summary (NARSUM) noted that the CI used his CPAP device during deployment.  

At the VA Compensation and Pension (C&P) exam performed a month before separation, the CI reported continued use of the CPAO device with occasional daytime sleepiness.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the OSA as unfitting due to the requirement for CPAP, coded 6847 (sleep apnea syndromes), and rated it at 0%.  The VA rated the OSA at 50% for requiring use of breathing assistance device.  The Board considered whether the evidence supported a higher than 0% disability rating.  The Board determined that the CI”s CPAP device used for control of his sleep apnea symptoms met criteria for a 50% rating.  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.  

Chronic Joint Pain Involving the Left Wrist and Bilateral Knees.  The PEB combined the chronic left wrist and bilateral knee pain conditions under a single Service disability rating, coded 5003 (degenerative arthritis).  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single Service disability rating must be reasonably justified as separately unfitting in order to remain eligible for Service rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  

Left Wrist.  A primary care note dated 20 December 2001 documented that the CI had a history of left wrist surgery and had a P2 profile for no push-ups.  The NARSUM noted the P2 profile and history of left wrist surgery.  An orthopedic addendum dated 11 September 2003 noted chronic left wrist pain after a fracture in 1997 and surgical removal of a bone spur.  The wrist examination was significant for tenderness and mild edema at the incision site with decreased ulnar and radial range of motion.  A diagnosis of chronic left wrist pain secondary to traumatic arthritis was rendered.  The examiner opined that the CI was unable to perform his duties as a mechanic due to the use of pain medications and the natural history of osteoarthritis.  

At the VA C&P examination performed a month before separation, the examiner noted numb scars and degenerative joint disease of the left wrist.  The physical examination documented that the CI was left hand dominant, mild weakness with grip on his left hand, and pain and stiffness in all planes of wrist motion.  There was no evidence of carpal tunnel syndrome (Phalen's test and negative for Tinel's test).  The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Wrist ROM
(Degrees)	MEB ~ 6 Mo. Pre-Sep
(20030911) p.364	VA C&P ~ 1 Mo. Pre-Sep
(20040212) p.298	
Dorsiflexion (70 Normal)	90	60	
Palmar Flexion (80)	80	60	
Ulnar Deviation (45)	25	35	
Radial Deviation (20)	10	15	
Comment	--	Neg Phalens Test & Tinels Test	
§4.71a Rating	0%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB combined joint pain conditions including the left wrist pain under a single Service disability rating.  The Board first considered if the left wrist condition could be reasonable justified as separately unfitting.  The Board noted that the left wrist condition was permanently profiled restricting push-ups, but did not prevent the CI from performing his duties as a mechanic.  The left wrist condition was not implicated in the commander’s statement.  After due deliberation, members agreed that the evidence does not support that chronic left wrist pain condition could be reasonably justified as separately resulting in the CI’s inability to perform his MOS rating and is not eligible for a separate Service rating.

Bilateral Knee.  An x-ray evaluation dated 11 April 2002 noted a history of bilateral knee pain and revealed findings suggestive of bilateral high riding patella.  An orthopedic evaluation dated 19 June 2003 noted that the CI was in a land mine accident in 1991 with some bilateral knee pain at that time.  At the time of the orthopedic evaluation the CI reported bilateral left greater than right knee pain with occasional mild swelling.  The pain was worse with stairs and squats.  The knee examination was normal except for signs of a meniscal tear on the left.  A magnetic resonance imaging study dated 25 June 2003 documented evidence of contusion of the patella and post-traumatic retro-patella changes.  On 25 July 2003 the CI underwent a diagnostics arthroscopy and meniscal debridement of the left knee.  Post-operative he was placed crutch ambulation and physical therapy.  After resumption of normal activities that CI continued to report 5/10 bilateral knee pain.  At the NARSUM examination, the CI reported “significant knee pain and swelling with running activities to the point of needing a cane for assistance with walking.”  The examiner noted that “after years of military service has developed bilateral knee pain secondary to early osteoarthritis.  He has tried activity modification, physical therapy, assisted devices, and oral anti-inflammatories with continued pain in his knees.”  The knee examination revealed full extension, flexion to 125 degrees, tenderness along the medial joint line, and pain with meniscal testing.  

At the VA C&P examination performed a month before separation, the CI reported continued bilateral knee pain and use knee braces.  He reported a history of bilateral knee surgeries.  The knee examination demonstrated surgical scars, mild laxity, and pain and stiffness in all planes of motion for each knee.  There was crepitance in the right knee.  Diagnoses of chondromalacia of the right knee, mild retropatellar pain syndrome of the left knee, and mild laxity of both knees were rendered.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Knee ROM
(Degrees)	MEB ~ 6 Mo. Pre-Sep
(20030911) 	VA C&P ~ 1 Mo. Pre-Sep
(20040212) 	
	Left	Right	Left	Right	
Flexion (140 Normal)	125	125	115	125	
Extension (0 Normal)	0	0	5	5	
Comment	s/p surgery, painful motion	Painful motion	Painful motion	Painful motion	
§4.71a Rating	10%	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB combined joint pain conditions including the bilateral knee pain under a single Service disability rating.  The Board first considered if each knee could be reasonable justified as separately unfitting.  Surgical procedures were performed on both knees, there were multiple treatment notes documenting bilateral knee pain, and knee pain was implicated in the commander’s statement.  Board members agreed that each knee could be reasonable justified as separately unfitting.  The Board then considered whether the evidence supported a higher than 0% rating for each knee.  The Board determined that multiple treatment notes, NARSUM examination, and VA examination documentation of painful motion met criteria for a 10% rating IAW VASRD §4.59.  There was no evidence of leg limitation of flexion to 30 degrees (5260); leg limitation of extension to 15 degrees (5261); or meniscal dislocation with frequent episodes of locking, pain and effusion for a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the each knee.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that umbilical hernia was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The umbilical hernia condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the umbilical hernia condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended umbilical hernia condition and so no additional disability ratings are recommended.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the obstructive sleep apnea condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  In the matter of the bilateral knee pain condition, the Board unanimously determined that each knee was separately unfitting and IAW VASRD §4.71a and §4.59, the Board unanimously recommends a disability rating of 10% for each knee, coded 5099-5003.  In the matter of the contended umbilical hernia condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the left wrist condition, the Board unanimously agrees that it was not separately unfitting and cannot recommend it for additional disability rating.  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	
Obstructive Sleep Apnea	6847	50%	
Left knee pain 	5099-5003	10% 	
Right knee pain	5099-5003	10%	
COMBINED (w/ BLF)	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President 
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXXXXX, AR20150014333 (PD201400094)

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 date of this 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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA