RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00179
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080126  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Infantryman, medically separated for “sleep apnea” and “patellofemoral pain syndrome [PFPS] right knee)” as unfitting, rated 0% and 0% respectively, with a combined disability rating of 0%.

CI CONTENTION:  He should have been rated higher for his unfitting sleep apnea and knee conditions and his not unfitting migraine headaches, depressive disorder, and nasolacrimal duct disorder conditions.  The application included a 23-page legal memorandum with exhibits that was reviewed and considered by Board members.  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 PEB - 20071012	VARD - 2080725	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sleep Apnea	6847	0%	Obstructive Sleep Apnea	6847	50%	STR	
PFPS, Right Knee 	5099-5003	0%	Tendonitis, Right Knee	5260-5024	10%	20080328	
Migraine with Aura	Not Unfitting	Migraine Headaches	8100	30%	20080328	
Depressive Disorder	Not Unfitting	Depressive Disorder	9434	10%	STR	
Nasolacrimal Duct Obstruction	Not Unfitting	No VA Entry	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Sleep Apnea.  A sleep study was performed in 22 March 2007 (10 months before separation) to evaluate the CI’s complaints of sleep disturbance elicited during a neurology consult for headaches.  The study confirmed the diagnosis of moderate obstructive sleep apnea (OSA), and nightly CPAP (continuous positive airway pressure) was prescribed.  There were follow-up clinical entries in the service treatment record (STR) corroborating compliance with CPAP.  There was a good response to CPAP, but the CI opted for a Medical Evaluation Board (MEB) referral in lieu of a continued trial of CPAP and weight loss.  The MEB forwarded “sleep apnea syndrome” to the PEB.  The narrative summary (NARSUM) of 9 May 2007 (9 months before separation) documented that the CI “currently is getting good relief of his sleep apnea with [CPAP] device, which he uses nightly.”  The permanent P3 profile and the commander’s performance statement specified a requirement for CPAP.  The CI failed to report for a scheduled pulmonary evaluation by the VA, and the VA rating for OSA cited evidence from the STR.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under code 6847 specific to sleep apnea syndromes cited the rationale “asymptomatic with CPAP use.”  The VASRD §4.97 criteria for a 0% rating under 6847 are “asymptomatic but with documented sleep disorder breathing.”  The VA’s 50% rating cited the 50% criteria under 6847, “requires use of breathing assistance device such as [CPAP] machine.”  There was no evidence for respiratory failure, cor pulmonale, or tracheostomy to support a rating higher than 50%.  In consideration of the above evidence and unequivocal VASRD criteria, the Board recommends a 50% rating for the sleep apnea condition under code 6847.

PFPS, Right Knee.  The CI suffered persistent pain after a strain injury to his right knee in 2005.  Imaging (MRI) demonstrated chondromalacia patella (damage to the cartilage under the knee cap), with no evidence of meniscal or ligamental injury.  There was STR documentation of grossly normal range of motion (ROM) with no contrary entries.  There was STR documentation of an intermittent, but not persistent, effusion; and, there was documentation of joint stability to stress testing and the absence of impingement (locking); with no entries to the contrary.  Surgery was not recommended and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic right knee pain secondary to chondromalacia and moderate degenerative joint disease” for PEB adjudication.

The NARSUM was supplemented by an orthopedic addendum of 18 July 2007 (6 months before separation).  These documented persistent pain that was aggravated by prolonged walking, squatting or stair climbing, and that prohibited running.  Both the NARSUM and orthopedic physical examinations recorded tenderness, stability to stress testing (except for “mild laxity” to valgus stress noted by the orthopedist), and negative signs of impingement.  The orthopedist noted a “mild” effusion.  The NARSUM examiner documented “full” ROM.  The orthopedic addendum provided ROM measurements of flexion to 130 degrees (normal 140, minimum compensable 45) and extension 0 degrees (normal), specifying painful motion.

At the 28 March 2008 VA Compensation and Pension (C&P) evaluation, performed 2 months after separation, the CI reported constant knee pain rated 8/10 aggravated by “physical activity” and walking.  The physical examination recorded a normal gait, tenderness, the absence of effusion, stability to stress testing, and negative signs of impingement.  The ROM measurements were normal, specifying painful motion but no degradation with repetition (no DeLuca factor).   

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating analogous to 5003 (degenerative arthritis) was possibly premised on Army Regulation (AR) 635-40 (B-29, e) which circumvents VASRD §4.59 (painful motion); and, members agreed that there was ample documentation of painful motion for application of §4.59 in support of the minimum 10% rating.  The VA’s 10% rating (based on the C&P evidence) under code 5260-5024 (limitation of flexion rated as tenosynovitis [defaulting to criteria of 5003]) cited painful motion.  There was no persistent effusion and locking, or fracture with non-union or malunion, to achieve a rating higher than 10% under any alternate code; and, there was insufficient evidence of joint instability to support a separate rating.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the right knee condition; preferring code 5024 for its clinical compatibility. 

Contended PEB Conditions (Migraine with Aura, Depressive Disorder, and Left Nasolacrimal Duct Obstruction).  The earliest complaint of headache in the STR was from March 2007 during pre-deployment screening for Iraq (a second tour for the CI).  These were described as “disabling” unilateral headaches occurring “2-3 times/week” and were diagnosed as migraines by the consulting neurologist.  The CI was started on prophylactic medications (Topiramate, eletriptan), and a neurology entry dated the same day as the NARSUM documented that the headaches were “now reduced from prior frequency...about once a week now...responding well...”  The NARSUM itself documented the acuity at onset (severity 9/10, frequency twice per week); but, did not document concurrent severity and frequency.  

The CI first presented for mental health (MH) evaluation in March 2007 (contemporary with the headache presentation).  He reported previously undisclosed suicidal ideation, but was cleared for outpatient management, and no medication was prescribed.  An MH entry three months later documented that there was no current suicidal ideation, provided an Axis I diagnosis of anxiety disorder, and assigned a Global Assessment of Functioning (GAF) score of 70 (cusp of mild and moderate ranges of impairment).  A follow-up MH note a week later noted stable symptoms and continued management without medication, no suicidal ideation or intent, and specifically opined that the diagnostic criteria for post-traumatic stress disorder were not met.  Neuropsychological testing was conducted as part of the MEB evaluation, partly for evaluation of a previously unreported concussive episode from the first Iraq tour.  The examiner opined that there were “cognitive inefficiencies...[but]...no convincing evidence of organic brain dysfunction ...meets retention criteria from a neuropsychological point of view alone.”  A psychiatric addendum to the NARSUM (conducted the next day) documented that the CI had been cleared for deployment during MH screening and listed no psychoactive medications.  The mental status examination recorded a “mildly dysphoric” mood with a “full and appropriate” affect.  It was otherwise normal without active suicidal ideation, delusional or hallucinatory symptoms, speech disturbance, objective cognitive impairment, or other acute features.  The Axis I diagnosis was “depressive disorder, not otherwise specified, as manifests [sic] by some dysphoria, irritability, sleep and appetite disturbance secondary to occupational stressors.”  The GAF assignment was 68, and the MEB psychiatrist opined that the MH condition met retention standards.  

The CI was evaluated by ophthalmology for a left nasolacrimal duct obstruction (clogged tear drainage duct leading to excessive tearing and eye irritation) and underwent surgical cannulation to open the canal in July 2007.  The NARSUM documented, “No further treatment or duty limitations were recommended by consultant.”  The CI’s application asserts that the symptoms persisted, and references post-separation corroboration in VA records.

The commander’s (rear detachment, not operational) performance statement addressed only the OSA and knee conditions.  No duty loss for the headaches or any other conditions was documented.  The headache, MH and tear duct conditions were not profiled throughout service.  All three conditions were forwarded by the MEB as meeting retention standards.

The Board’s main charge was to assess the fairness of the PEB’s determinations that the above conditions were not unfitting.  Although it was clear that all of the conditions remained symptomatic at separation, the evidence indicated that they were clinically stable and improving (with the possible exception of the eye symptoms).  Members thus agreed that there was insufficient performance-based evidence indicating that any of the conditions interfered with duty requirements to an extent that would have in itself resulted in MEB referral and termination of service.  The MEB opinion that they all met retention standards (buttressed by specialty consultants), the fact that none of them triggered a profile, and the fact that none of them were implicated by the commander were compelling support for that conclusion.  After due deliberation in consideration of the preponderance of the evidence, the Board determined that there was insufficient cause to recommend a change in the PEB fitness determinations for the migraine, psychiatric, and nasolacrimal duct conditions; thus, they were not eligible for additional rating.

BOARD FINDINGS:  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 right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5260-5003 IAW VASRD §4.71a.  In the matter of the contended migraine, depressive disorder, and left nasolacrimal duct obstruction 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Sleep Apnea	6847	50%	
Patellofemoral Pain Syndrome, Right Knee	5024	10%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150224, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160018509 (PD201500179)

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 re-characterize 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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA