RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE: PD-2014-00397
BRANCH OF SERVICE:  Army	BOARD DATE:  20150611
SEPARATION DATE: 20070307

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Power Generation Equipment Repairer) medically separated for a right hand injury.  The condition 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 P3U3 profile and referred for a Medical Evaluation Board (MEB).  The “right wrist pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated “right (dominant) wrist pain without any specific history of trauma/injury” as unfitting, rated 0%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  One other condition of “obstructive sleep apnea” (OSA) was submitted by the MEB, which the IPEB determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Sleep apnea [sic], right hand injury”

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:

IPEB – Dated 20061201	VA* - ~5 Mos. Post-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right (Dominant) Wrist Pain without any Specific History of Trauma/Injury.	5099-5003	0%	Residuals of Right (Dominant) Hand Injury	5299-7804	10%	20070813	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20070813	
Other x 0 (Not In Scope)	Other x 0 	
RATING:  0%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20070911 (most proximate to date of separation [DOS]) and VARD dated 20071109 for OSA condition.

ANALYSIS SUMMARY:

Right Wrist Condition.  Review of the service treatment record (STR) and VA medical records detailed that the right-hand dominant CI injured his right hand in 2004.  He presented to orthopedic clinic in September 2005 (18 months prior to separation) with pain and swelling of the right wrist.  The examiner noted a tender nodule on the dorsum (back) of the hand which was initially thought to be a ganglion cyst, but aspiration revealed that it was a bony mass.  X-ray of the hand was normal.  The bony mass was removed later that month, but the CI had persistent pain and limited range-of-motion (ROM) which prevented him from performing his duties as a mechanic.

The DD Form 2808, Report of Medical Examination, was completed on 22 May 2006 (10 months prior to separation).  This examination (referenced in the narrative summary [NARSUM]) documented tenderness on the dorsal aspect of the wrist, palmar flexion 45 degrees (normal 80), and extension (dorsiflexion) 30 degrees (normal 70).  The DA Form 3349, Physical Profile, listed many restrictions associated with the wrist and in his letter to the PEB; the CI’s commander opined that he would not be able to perform his MOS duties with his medical condition.  The commander specifically mentioned repairing equipment, lifting items, operating vehicles, handling weapons, wearing required equipment, and ability to deploy at any time.  At a physical therapy evaluation on 1 August 2006 (7 months prior to separation), the CI rated his pain 6/10, while examination demonstrated (palmar) flexion 35 degrees, extension 55 degrees, and limitation of motion at all end ranges due to pain.

At the VA Compensation and Pension (C&P) exam on 13 August 2007 (5 months after separation), the CI complained of stiffness and pain in the right hand “most days” which was worse with repetitive movements, squeezing, and pulling.  He reported that his hand got fatigued and that he developed some numbness and tingling around the scar and of the fingers.  On examination, he had a 2.5 cm linear, vertical scar over the third metacarpophalangeal joint; there was some pain and tenderness in this area with deep palpation.  There was no bony deformity, and neurovascular exam (including strength) was intact.  The CI was able to touch the fingers to the thumb, and was able to touch all the digits to the palmar crease of the hand.  He had good dexterity with writing, twisting, and pushing.  There was no specific comment about ROM of the wrist.  X-rays of the right hand were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition under analogous code 5003 (degenerative arthritis) at 0%, citing residual pain and limitation of movement.  The VA rated the condition under code 5299-7804 (unstable or painful scar), granted for a scar that was painful on examination.  The rater stated, “The evidence does not show any residuals other than the tender scar and the veteran's complaints of pain.  Although the recent VA examination revealed no significant abnormality or functional impairment other than the light tenderness on deep palpation, a 10 percent evaluation was found warranted considering the veteran's symptoms and his occupation, and that the disability affects his dominant hand, in light of the criteria pertinent to functional loss due to pain on use or during flare-ups.”  Functional loss of the wrist was represented by duty restrictions in the DA 3349 and the commander’s statement that the CI could not perform his military duties.  Although X-rays did not demonstrate degenerative arthritis of the wrist, a 10% rating under code 5003 was supported by decreased (but noncompensable) ROM, painful motion (documented in the physical therapy evaluation), and loss of function.  The Board noted that the VA’s rating of the surgical scar; but, by precedent, the Board does not recommend service disability rating for scars unless their presence imposes a direct functional limitation that renders the CI unfit.  In this case, symptoms attributable to the scar are not unfitting other than their direct contribution to the overall functional loss.  Rating the scar separately would result in pyramiding as described in §4.14 (evaluation of the same disability [functional loss] under different diagnoses), and must be avoided.  There was not a pathway to a higher rating under the wrist codes, based on ankylosis or compensable limitation of motion.  In addition, a higher rating was not applicable under ankylosis or limitation of motion of single or multiple digits of the hand.  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 right wrist condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that OSA was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The STR detailed that the CI presented to the primary care clinic in May 2005 complaining of sleep problems since his deployment (which was January 2004 to February 2005).  His symptoms were difficulty falling asleep and frequent awakenings during the night; but no daytime somnolence, snoring complaints, or nightmares.  A sleep study on 29 June 2006 stated that the CI had been referred for loud snoring, witnessed apneas, difficulty initiating and maintaining sleep, and remaining tired and sleepy during the day.  The study showed moderate obstructive sleep apnea with mild oxygen desaturation.

The NARSUM on 18 September 2006 (6 months prior to separation) detailed that the CI had been diagnosed with OSA for which he was being fitted for a continuous positive airway pressure (CPAP) device.  The DA Form 3349, Physical Profile, listed OSA as a duty-limiting condition but did not list any duty restrictions referable to that diagnosis.  In his letter to the MEB, the commander’s letter opined that “this soldier will not be able to perform duties as a 52D … with his current medical condition.”  The commander mentioned requirements specific to the 52D MOS (see above), but did not specifically mention any difficulty with sleep or hypersomnolence.

At the VA C&P exam on 13 August 2007 (5 months after separation), the CI stated that “he had witnessed episodes of loud snoring and gasping for air upon wakening by his wife” before his diagnosis  After the CI forwarded additional documents, the VA recommended a disability rating of 50% for OSA on 9 November 2007.  In the VARD, the VA stated, “The records show that the Veteran was last seen for a follow-up on 28 September 2006, while still in the service, and reported improved sleep with the CPAP.  The evaluation notes indicate that the data obtained from the device indicated poor compliance with CPAP treatment with the Veteran using the device on only 55 percent of the nights and for an average of approximately 2.5 hours as opposed to the recommended 6 to 7 hours each night.  The Veteran was to be seen in three months; no further (more recent) records have been provided/contained in the service records.”  The CI was re-evaluated by the VA on 12 December 2008 (21 months after separation) and reported that he used the CPAP 90% of the nights, felt much better on it, slept 6-8 hours per night, was refreshed, had no snoring while using his CPAP machine, and took no naps during the day.  The examiner concluded that the OSA was well-treated with CPAP and that the CI was compliant with therapy.  There is no evidence in this case that OSA was associated with any functional impairment that was not corrected by CPAP.  Accordingly, members concurred that the PEB’s fitness determination was reasonable; and, after due deliberation, the Board finds insufficient cause to recommend a change in the PEB adjudication of 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, PEB reliance on the USAPDA pain policy for rating the wrist condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the right wrist condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended sleep apnea (OSA) condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Right (dominant) wrist pain	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140110, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD 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, AR20150015847 (PD201400397)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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