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)