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AF | PDBR | CY2013 | PD-2013-02062
Original file (PD-2013-02062.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02062
BRANCH OF SERVICE: Army  BOARD DATE: 20140605
SEPARATION DATE: 20041009


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13B10/Artillery Crewmember) medically separated for obstructive sleep apnea (OSA). The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P4/S1 profile and referred for a Medical Evaluation Board (MEB). The OSA condition failed to meet retention standards and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions. The Informal PEB adjudicated “OSA” as unfitting, rated 0%. The remaining conditions were determined to be not unfitting . The CI made no appeals and was medically separated .


CI CONTENTION: “Because my first VA rating in 2004 was 70% and over the years I have been increased to 90% my military disabilities are causing me problems with my personal life and at work also they are getting worst [sic].”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting OSA condition and the not unfitting bilateral knee, low back pain (LBP) and right acromioclavicular (AC) joint arthritis conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.


RATING COMPARISON :

Service IPEB – Dated 20040805
 VA - (1 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Obstructive Sleep Apnea 6847 0% Obstructive Sleep Apnea 6847 50% 20040907
Bilateral Knee Retropatellar Pain Syndrome Not Unfitting Retropatellar Pain Syndrome, Left Knee 5260 10% 20040907
Retropatellar Pain Syndrome, Right Knee 5260 10% 20040907
Low Back Pain Not Unfitting Mechanical Low Back Pain 5237 10% 20040907
Right Acromioclavicalar Joint Arthritis Not Unfitting Right Acromioclavicular Joint Strain 5201 10% 20040907
No Other Items in Scope
 No Other Items in Scope
Combined: 0%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 50303 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Obstructive Sleep Apnea Condition. The narrative summary (NARSUM) notes that the CI was diagnosed with OSA by a sleep study (polysomnography) on 30 October 2003 and initially treated surgically with a tonsillectomy. Following the surgery, a repeat sleep study demonstrated persistent sleep apnea, not fully treated with continuous positive airway pressure (CPAP). The CI was evaluated by an otolaryngology (ear, nose and throat) specialist for possible further surgery, but he opted to continue with CPAP treatment. At the MEB exam on 17 May 2004, 5 months prior to separation, the CI reported mild residual daytime sleepiness despite treatment of sleep apnea with CPAP. The MEB physical exam noted mildly elevated blood pressure, a partially visually obstructed airway (Mallampati class III airway), with removal of tonsils, a large neck circumference (associated with increasing risk of OSA), but an otherwise normal cardiovascular and respiratory examination. The NARSUM examiner indicated the CI was adequately treated with CPAP but required access to electricity or his excessive daytime sleepiness would return with concomitant physical limitations regarding the performance of safety or sensitive duties and therefore he was not deployable.

At the VA Compensation and Pension (C&P) exam on 7 September 2004, performed a month prior to separation, the CI reported improved OSA symptoms when using CPAP with occasional daytime sleepiness. The VA examination showed excessive tissue in the airway with a large tongue, but normal blood pressure and a normal cardiovascular and respiratory examination.

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the OSA condition as unfitting and rated it 0% and cited DoDI 1332.39. The VA rated OSA at 50%, coded as 6847 (sleep apnea syndromes). The applicant was diagnosed with severe OSA and post-tonsillectomy he declined further surgery and required continued use of CPAP to manage his symptoms. IAW VASRD §4.97 (schedule of ratings for the respiratory system) the OSA condition coded 6847 meets the 50% rating criteria specified as “requires use of breathing assistance device such as continuous positive airway pressure (CPAP) machine,” but does not meet the next higher evaluation of 100% which requires evidence of respiratory failure, cardiac effects or tracheostomy. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the OSA condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral knee, LBP and right AC joint arthritis conditions were 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.

Bilateral Knee Condition (Retropatellar Pain Syndrome). The orthopedic (Ortho) NARSUM, dictated 5 months prior to separation, noted that the CI reported bilateral knee pain for approximately 7 months after jumping from a truck from 3 feet off the ground. He had physical therapy without much improvement but passed his last physical fitness test with some discomfort during the physical fitness test (APFT) run. He reported increased pain with squatting and crawling. The examiner noted that his knee pain did not significantly affect the CI’s ability to perform his duties. The examination noted tenderness to palpation (TTP) around the patella and joint line, full range-of-motion (ROM) without pain with normal strength and sensation and no instability or evidence of cartilage damage. There was a positive patella grind test indicating some degenerative changes of the patella. Bilateral knee X-rays showed mild joint narrowing on the inside of both joints (medially). The examiner indicated that the bilateral knee conditions met retention standards but recommended profile limitations of running at his own pace and distance with an alternate APFT. Treatment notes in the service treatment record indicated the CI had been on temporary profile for the bilateral knee pain, with the left being more persistent than the right and that the CI came off that temporary profile on 30 April 2004. The permanent profile was L2 for knee pain as recommended by the orthopedic NARSUM. The commander’s statement did not mention knee pain, and indicated that the CI could perform the physical activities of his garrison duties.
At the initial VA C&P examination, a month prior to separation; the CI reported bilateral knee pain for 1 to 2 years with no history of injury, with greater discomfort on the left, especially with prolonged sitting. He denied instability, swelling, or flare-ups and was not using a brace. The VA examination showed minimally decreased knee flexion bilaterally with painful motion of the left knee only, with mild TTP of the lower patellar areas. The examiner indicated the knee conditions resulted in “minimal functional impairment.” The VA rated each knee 10% using code 5260, leg limitation of flexion, “for limited or painful motion.”

Low Back Pain Condition. The Orthopedic NARSUM noted the CI reported a 1 to 2 year history of LBP when lifting heavy objects for a long time. He denied any radicular or neurological symptoms. He had not sought medical care for the condition because it did not impact his ability to perform his duties and was pain free on the day of the examination. The MEB examination on 9 June 2004 showed TTP of the lumbar spine muscles with full ROM with discomfort in all directions and normal strength, sensation, reflexes and straight leg raise bilaterally. Lumbar spine X-rays were normal. The examiner stated the mechanical LBP condition met retention standards.

At the VA C&P examination the CI reported LBP for 2 years with treatment with physical therapy and negative X-rays. The CI reported a dull low backache without radiation or associated symptoms, aggravated by bending and lifting. There had been no periods of incapacitation and he had not missed any work in the past year. The VA exam showed a normal gait with normal spinal curvature, without muscle spasms. There was “minor” TTP over the lower lumbar spine area. Thoracolumbar ROM was normal. The examiner indicated the LBP caused “minimal functional impairment.” The VA gave a rating of 10% using code 5237, lumbosacral strain, for “localized tenderness.”

Right Acromioclavicular (AC) Joint Arthritis (Right Shoulder) Condition. The orthopedic NARSUM notes the CI reported right shoulder pain for a year. He reported an injury after an artillery round fell on it. He reported pain when lifting heavy objects. He had not sought care for the condition because it did not significantly affect his ability to perform his duties. The MEB examination showed full ROM “with minimal discomfort,” with intact strength and sensation and no evidence of instability, or muscle or cartilage damage. The evaluation suggested an AC joint sprain or arthritis. Right shoulder X-rays were normal. The examiner indicated the right shoulder condition met retention standards. The VA C&P examination a month prior to separation noted the CI was right-hand dominant. The CI reported discomfort in his right shoulder with overhead motion. He denied flare-ups or weakness. A right shoulder X-ray was reported to be negative for degenerative changes. The VA examination showed right shoulder ROM of anterior flexion and abduction of 165 degrees (normal 180 degrees) with discomfort. There was TTP of the top of the right shoulder. The examiner noted “minimal to mild functional impairment.” The VA assigned a rating of 10% using code 5201, arm limitation of motion, for “painful or limited motion.”

The LBP and right AC joint arthritis conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards. The bilateral knee condition was permanently profiled as L2 and the commander indicated the CI was physically capable of garrison duties, but not deployment due to the OSA condition. There was no performance based evidence from the record that any of these conditions 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 any of the contended conditions and therefore no additional disability ratings are recommended.


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. The PEB cited DoDI 1332.39 for rating the OSA condition 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 §4.97. In the matter of the contended bilateral knee, mechanical LBP and right AC joint arthritis conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.


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%
COMBINED 50%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131028, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                 
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review



 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 XXXXXXXXXXXXXXX, AR20150004611 (PD201302062)


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 50% 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 50% 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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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