RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03886
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080405

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard, E4, Light Wheeled Vehicle Mechanic, medically separated for “chronic right ankle pain …,” with a disability rating of 10%.  

CI CONTENTION: “Patient has been deemed unable to work by SSA and VA.  His medical problems and mental health problems have been rated by VA at 90%.  Please consider all conditions.”  The CI’s 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 Physical Evaluation Board (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 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 Admin Correction - 20080501	VARD - 20080521	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Ankle Pain	5099-5003	10%	Right Ankle Strain	5271	20%	20080324	
Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20080324	
Insomnia	Not Unfitting	Insomnia Due To Pain	9410	NSC	20080324	
Sleep Walking	Not Unfitting	Sleep Walking Due To Ambien	9499-9424	NSC	20080324	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Right Ankle Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right ankle condition began during pre-deployment training in October 2005 after stepping in a hole while wearing his combat gear.  The CI developed chronic right ankle pain.  Radiographic studies, including magnetic resonance imaging, X-rays and a bone scan, were essentially normal.  Electrodiagnostic testing was negative.  There was no surgical indication.  Despite treatment with bracing, casting, joint aspiration, steroid injections and physical therapy, the CI’s ankle condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and so he was referred for an MEB.  The 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.  

Right Ankle ROM
(Degrees)	MEB ~13 Mo. Pre-Sep	VA C&P ~1 Mo. Pre-Sep	
Dorsiflexion (20 Normal)	12	5	
Plantar Flexion (45)	54	20	
Comment	Painful motion; abnormal gait; tenderness	Painful motion; abnormal gait; tenderness and swelling	
§4.71a Rating	10%	20%	

At the MEB examination (recorded on DD Form 2807 and 2808) dated January 2007, 15 months prior to separation, the CI reported that he wore a right foot and ankle brace, had numbness in right foot and had pain in his ankle with swelling in his right ankle and foot.  The examiner recorded that the CI was being evaluated for numbness and tingling in right foot and that the CI wore a foot and ankle brace occasionally.  Physical exam was normal.  At the MEB NARSUM exam, dated 22 March 2007, 13 months prior to separation, the CI reported that his ankle pain interferes with his sleep.  The examiner recorded that the CI was unable to run, jump, march, or carry excessive weight.  On exam the CI was noted to have a slightly antalgic gait to the right side.  Tenderness was noted, and the CI’s dorsiflexion was pain limited as indicated in the chart above.  

At the VA Compensation and Pension (C&P) examination on 24 March 2008, 12 days before separation, the CI reported that he had significant ankle pain.  The CI reported that he had flare-ups with standing and walking long distances.  Physical exam showed an antalgic gait (attributed to the ankle condition), tenderness, swelling, and decreased motion as indicated in the chart above with painful motion in all directions.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition at 10% using an analogous 5003 code (degenerative arthritis), citing painful motion.  The VA rated the right ankle condition 20%, coded 5271 (limited motion of the ankle), citing marked limitation of motion due to dorsiflexion being limited by pain to 5 degrees and plantar flexion being limited to 20 degrees.  The Board agreed that the VA ROM examination conducted less than a month prior to separation had more probative value than the MEB ROM examination conducted 13 months prior to separation.  The VA examination detailed above was consistent with a marked limitation of motion supported by the presence of an abnormal gait, swelling and tenderness, as required for the maximum 20% rating under this code.  

The Board also considered whether a higher rating was supported under other diagnostic code options.  Because there was no ankylosis, nonunion or malunion, VASRD §4.71a offered no applicable joint code which would yield a rating higher than the 20%; providing no benefit to the CI.  The Board also considered whether ratings under the VASRD code for other foot injuries (5284) provided for a higher rating (§4.7) however all Board members agreed that the severe level (30%) was not supported.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right ankle condition, coded 5271.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea (OSA), insomnia secondary to pain, and sleepwalking secondary to use of Ambien were 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 three contended conditions have overlapping symptoms with the disability being excessive daytime somnolence (tired, decreased attention, or falling asleep) or restriction from driving or field conditions.  

OSA.  The OSA condition (along with insomnia) was profiled and implicated in the commander’s statement dated from 5 July 2007.  The commander indicated restriction from driving military vehicles, restrictive hours of duty due to sleep requirements and the CI seeming tired all the time (almost “fall asleep” while working).  Although the polysomnography report (sleep study), dated 6 March 2007 (3 months prior to the commander’s statement), indicated that the CI complained of “heroic snoring, excessive daytime sleepiness, witnessed apnea, fatigue and restless sleep,” these symptoms appeared to have largely resolved prior to separation.  The latest clinical note from the sleep center, dated 23 January 2008, 3 months prior to separation (after the commander’s statement), indicated that the CI was tolerating his breathing device (CPAP) much better than previously and that his sleep was improving with sleep hygiene.  The latest case management note in the CI’s file, dated 3 March 2008, 1 month prior to separation, indicated that the new CPAP machine was working much better and that the CI was able to sleep 5-6 hours per night with medication (Lunesta).  The VA examiner noted that on 19 November 2008, 7 months post-separation, the CI reported that he did not experience any functional impairment from OSA.  

Routinely obstructive sleep apnea is not considered unfitting solely on the basis of field and operational impediments to the use of CPAP.  There was insufficient evidence in this case that OSA was associated with any functional impairment that was not corrected by CPAP proximate to the date of separation.  The OSA condition was reviewed and considered by the Board.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  

Insomnia and Sleepwalking.  Insomnia due to pain and sleepwalking due to Ambien are not considered disability condition IAW DoDI 1332.38, E.5 in effect at the time.  Ideally PEB adjudication would have been as “not compensable”; however, the PEB not unfitting determination is also considered non-compensable.  

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 any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the right ankle condition, the Board unanimously recommends a disability rating of 20%, coded 5271 IAW VASRD §4.71a.  In the matter of the contended OSA, insomnia, and sleepwalking conditions, 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.  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	
Chronic Right Ankle Pain	5271	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140819, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander, US Army Physical Disability Agency (AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA   22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for (PD201403886)

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, accept the Board's recommendation to modify the individual's disability rating to 20% without re-characterization 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:

CF:
( ) DoD PDBR 
( ) OVA