RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00820
BRANCH OF SERVICE:  Army	date of SEPARATION:  20080716

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Motor Transport Operator, medically separated for “arthritis, degenerative, right knee,” rated at 10%.

CI CONTENTION:  He was not found unfit for his obstructive sleep apnea.  Additionally, he was not evaluated for his PTSD condition.  His complete submission is at Exhibit A. 

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 Physical Evaluation Board 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 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 – 20080415	VARD - 20080923	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Arthritis, Degenerative, of Right Knee…	5003	10%	Patellofemoral Syndrome, Right Knee	5260	10%	20080812	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%		
Combined:  10%	Combined:  80%	

ANALYSIS SUMMARY:  

Right Knee Degenerative Arthritis.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent right knee surgery in March 2007 after a 10-month history for right knee pain, which did not resolve with physical therapy and a magnetic resonance imaging showed a possible meniscal tear.  The arthroscopy revealed a medial meniscus tear, chondromalacia and mild degenerative joint disease.  After surgery, the CI continued to report persistent right knee pain.  

The NARSUM noted that the CI was unable to mount/dismount vehicles, service vehicles, run, march, rough march, or wear full body armor secondary to pain.  The physical examination demonstrated medial joint line tenderness to palpation; pain limited motion, a normal gait, no evidence of instability, and negative meniscal testing.  At the VA Compensation and Pension (C&P) examination performed approximately a month after separation, the CI reported bilateral knee pain and giving way.  He did not use any pain medications.  On physical examination there was mild right knee pain at the end on motion. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10% (coded 5003, degenerative arthritis), citing slight limitation of motion with pain and positive imaging.  The VA rated the right knee condition 10% (coded 5260, [leg limitation of flexion]), citing objective findings of pain on motion.  There was no degree of limitation of motion, instability, or evidence of dislocated meniscus (with locking and effusion) which would achieve a minimum rating under the available joint codes.  However the Board noted a 10% rating was supported based on functional loss (§4.40 and §4.45) due to painful motion (§4.59).  There is therefore no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code, and no grounds for additional rating based on the presence of instability.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the right knee degenerative arthritis condition was appropriately recommended in this case

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea (OSA) 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.  A sleep study was performed in March 2006 to evaluate complaints of snoring and daytime fatigue.  The study confirmed the diagnosis of moderate OSA, and nightly CPAP [continuous positive airway pressure] was prescribed.  The permanent profile dated 9 January 2007 specified that the CI must use C-PAP machine for sleep.  At the pulmonary clinic examination on 27 March 2007, the CI reported that his symptoms of OSA were helped by the use of the CPAP machine.  At the VA C&P examination on 12 August 2008 (a month after separation), the CI reported that his symptoms of OSA resolved with the use of the CPAP machine every evening.  The OSA condition was profiled and judged to fail retention standards. It was not implicated in the commander’s statement.  There was no performance based evidence from the record that OSA 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 OSA contended condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the right knee degenerative arthritis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration. The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.    

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAMR-RB						

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20160005609 (PD201400820)  

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA