RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200726 SEPARATION DATE: 20030128 BOARD DATE: 20130201 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (54B10/Chemical Operations), medically separated for obstructive sleep apnea (OSA). The CI fell asleep during convoy maneuvers in February 2001. He was diagnosed with OSA and treated with a continuous positive airway pressure (CPAP) machine. He also experienced a history of knee pain since approximately 2001 which was not a consequence of trauma and not associated with a surgical indication. Neither condition improved adequately to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3/L2 profile and referred for a Medical Evaluation Board (MEB). The OSA and chronic bilateral knee pain were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions were listed on the DA Form 3947. The PEB adjudicated the OSA condition as unfitting, rated 0%, with application of the Department of Defense Instruction (DoDI) 1332.39. The remaining condition, chronic bilateral knee pain, was determined to be not unfitting. The CI made no appeals, and was medically separated with a 0% disability rating. CI CONTENTION: “I was granted a higher rating soon after via the VA.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The chronic bilateral knee pain condition requested for consideration and the unfitting OSA condition meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. The remaining conditions rated by the VA at separation are not within the Board’s purview. Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20021202 VA (~6 Mos. Post-Separation) – All Effective Date 20030129 Condition Code Rating Condition Code Rating Exam OSA 6847 0% OSA 6847 30%* 20030712 Chronic Bilateral Knee Pain Not Unfitting Chondromalacia Patella Left Knee 5299-5261 10%** 20030715 Chondromalacia Patella Right Knee 5299-5261 10%** 20030715 No Additional MEB/PEB Entries Allergic Rhinitis 6522 10% 20030712 Spontaneous GERD 7399-7319 10% 20030712 Not Service-Connected x 3 20030712 Combined: 0% Combined: 60% *Increased to 50% VARD 20040305 effective 20040112; no change to rating in subsequent VARDs ** No change to rating in subsequent VARDs ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that the VA granted a higher rating soon after separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates VA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DVA, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. OSA Condition. The OSA condition was well documented in the service treatment record. After a 2 year history of sleeping difficulty, loud snoring and excessive daytime somnolence, a sleep study on 14 June 2002 confirmed the presence of sleep apnea, and he required continued treatment with titrated CPAP. The CI was placed on a permanent profile that required him to use a CPAP machine. The PEB’s DA Form 199 assigned a 0% rating under DODI 1332.39 (E2.A1.2.21). Contemporary PEBs across all of the services no longer consider sleep apnea syndromes to be unfitting on the basis of impediments to the use of CPAP in the field; but, the Board, by legal opinion and firm precedent, does not make contrary recommendations to a PEB determination that a condition was unfitting. VASRD §4.100 mandates a minimum rating of 50% under 6847 for sleep apnea syndromes requiring a breathing assistance device. In consideration of the unequivocal evidence, and IAW DoDI 6040.44, the Board must recommend a separation rating of 50% for the OSA condition. Bilateral Knee Pain Condition. The condition adjudicated as not unfitting by the PEB was chronic bilateral knee pain. The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (Resolution of reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The CI first presented with complaints of knee pain in November 2001, at which time it had been present in both knees for one year. Evaluation with X-rays and magnetic resonance imaging was negative. A CT scan in September 2002 was reportedly interpreted by an orthopedic surgeon as showing chondromalacia of the patellae. Ongoing complaints of pain in both knees with running, climbing stairs and driving led to a permanent L2 profile that prohibited rucking, running, jumping, squatting and kneeling. The commander’s statement indicated that his medical condition and profile rendered him unable to perform his duties. After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of bilateral knee pain favors its recommendation as an additionally unfitting condition for separation rating. The Board turns attention to a rating assessment of the knee pain condition. In this case, the Board must apply separate codes and ratings for each knee, since the evidence indicates each knee was independently unfitting. There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Knee ROM (Degrees) NARSUM ~4 Mo. Pre-Sep VA C&P ~6 Mo. Post-Sep Left Right Left Right Flexion (140 Normal) 125 129 135 135 Extension (0 Normal) 0 0 0 0 Comment No swelling + Painful motion §4.71a Rating 10%* 10%* 10% 10% *Conceding pain with use The MEB narrative summary (NARSUM) examination on 25 September 2002 (4 months prior to separation) noted “no significant physical findings, no swelling, no limitation of joint movement.” Walking on toes and heels was accomplished without difficulty. The MEB examiner on the same day reported no swelling, but slight tenderness of each patella was present. An orthopedic surgery evaluation on 7 October 2002 reported bilateral knee pain localized to the retropatellar area, left worse than right. Examination revealed pain with squatting at 45 degrees, normal knee ligaments, no evidence of meniscal pathology and no pain with patellofemoral compression. At the VA Compensation and Pension exam on 15 July 2003 (6 months after separation) the CI reported that he worked as a school custodian. The left knee was more bothersome than the right and he complained of stiffness on sitting, painful use of the clutch in his car, and worse pain with heavy lifting. He avoided squatting and kneeling, but denied swelling. On examination, flexion was painless but extension against resistance was painful. There was no instability or crepitus. X-rays of the knees were normal. The Board directs attention to its rating recommendation based on the above evidence. The VA rated each knee at 10% under an analogous 5261 code (limitation of extension). Although noncompensable limitation of flexion was present, Board members agreed that sufficient evidence of pain with use (§4.40; Functional loss) was present to justify a 10% rating, IAW VASRD §4.71a. There was no evidence to support additional disability rating for instability under the 5257 code. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board recommends a disability rating of 10% for the left knee pain condition, and 10% for the right knee condition, each coded 5099-5014. 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 DoDI 1332.39 for rating OSA was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.100. In the matter of the chronic bilateral knee pain condition, the Board unanimously agrees that it was unfitting; and, unanimously recommends a disability rating of 10% for each knee, coded 5099-5014 IAW VASRD §4.71a. 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% Chronic Left Knee Pain 5099-5014 10% Chronic Right Knee Pain 5099-5014 10% COMBINED (w/ BLF) 60% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120611, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20130004018 (PD201200726) 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 XXXXXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)