RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	BRANCH OF SERVICE:  army
CASE NUMBER:  PD0900195	SEPARATION DATE:  20041223
BOARD DATE:  20101229			

SUMMARY OF CASE:  This covered individual (CI) was a National Guard SSG/E-6 (88M, Heavy Equipment Transporter) medically separated from the Army in 2004 after ~16 years of combined service (7+ years Active Duty and 8+ years National Guard).  The medical basis for the separation was Narcolepsy, Chronic Neck Pain, Low Back Pain (LBP) and Left Shoulder Pain.  While deployed to Kuwait and Iraq in 2003 the CI noted excessive daytime fatigue and falling asleep doing her job, but never with driving.  Her suspected narcolepsy was confirmed by sleep studies.  Initial medication was discontinued due to adverse side effects and the CI’s symptoms were not sufficiently relieved by naps or secondary medications for her to return to duty.  The CI had an insidious onset of neck, LBP, and left shoulder pain in 2003. Physical therapy, epidural steroid injection of the neck, joint injection to the shoulder, and non-narcotic medication therapy were without significant permanent relief.  Magnetic Resonance Imaging (MRI) indicated degenerative disc disease (DDD) and disc bulge of the neck, disc desiccation at L2-L3 of the back, and thinning of the left shoulder rotator cuff indicating either a partial tear or degenerative changes.  Since she did not respond adequately to perform within her military occupational specialty or participate in a physical fitness test, she was issued a permanent P-3, U-3, L-3 profile and underwent a Medical Evaluation Board (MEB).  Narcolepsy, LBP, Left Shoulder pain, and Neck Pain were addressed in the narrative summary (NARSUM) and forwarded to the Physical Evaluation Board (PEB) on the DA Form 3947 as medically unacceptable IAW AR 40-501. Neck pain was indicated as EPTS.  No other conditions appeared on the MEB’s DA Form 3947 submission.  Other conditions included in the NARSUM and Disability Evaluation System (DES) packet will be discussed below.  The PEB, Formal PEB (FPEB), and an administrative correction to the FPEB all adjudicated the Narcolepsy at 10%; LBP at 10%, Left Shoulder at 0% and Neck Pain at 0% as unfitting (not EPTS), for a combined rating of 20%; with specified application of DoDI 1332.39 (E2.A1.4.1.5) for Narcolepsy and likely application of the US Army Physical Disability Agency (USAPDA) pain policy for the musculoskeletal conditions.  The USAPDA upheld the FPEB on CI appeal, and the CI was then discharged with a combined 20% disability rating.  The CI’s 20080718 appeal to the Army Board of Correction for Military Records (ABCMR) requested reconsideration by Physical Disability Board of Review (PDBR) and the CI was redirected to the PDBR.  

CI CONTENTION:  The CI states:  “My final rating from the Army was 20% however, VA awarded me 50%. Current rating is 90% and 100% IU (Individual Unemployability).”  

** The Rating Comparison Table is located on the next page

RATING COMPARISON:  

Service FPEB – Dated 20041123	VA (3 Mo. Pre-Separation) – All Effective 20041224	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Narcolepsy	8108	10%	Narcolepsy 	8108-8911	40%	20040916	
Chronic Neck Pain	5243	10%	Cervical Spine, DDD w/C5-C6 Disc Bulge…	5242	10%	20040916	
Chronic Low Back Pain	5237	0%	Lumbar Spine, DDD 	5242	20%	20040916	
Left Shoulder Pain	5099-5003	0%	Left Shoulder Impingement … 	5299-5203	10%	20040916	
↓No Additional MEB Entries↓	R LE Radiculopathy … 	8599-8520	10%	20050524	
	Sinusitis 	6599-6522	0%	20040916	
	Fibroids  	7699-7628	0%	20040916	
	Migraines 	8100	10%*	20040916	
	L Leg Pain; Side Pain; Shin Condition; Eyes; Chest Pain; HTN; Frostbite Both Feet & R Hand; Dermatitis; PTSD	NSC	
TOTAL Combined:  20%	TOTAL Combined (Includes Non-PEB Conditions):  70%	
* IU and Migraines 30% effective 20041224, granted by VA Appeal 20100809 (VARD 20100831)  

ANALYSIS SUMMARY:  There were numerous VA Rating Decisions (VARD) and VA appeals, including a VA Court of Appeals determination in the record.  These were reviewed and considered in this case but are not summarized in the above table.  The Board acknowledges the sentiment expressed in the CI’s application, i.e., that the gravity of her conditions and worsening over time impacts her current earning ability and quality of life and merits consideration for a higher separation rating.  However, the DES has neither the role nor the authority to compensate service members for anticipated (or actual) future severity or potential complications of conditions resulting in medical separation.  The DES only compensates for those conditions leading to separation from the military (unfitting).  The role and authority for compensating for worsening of conditions and/or not unfitting conditions is granted by Congress to the Veterans Administration.  

Narcolepsy Condition.  The PEB rating, as noted above, was derived from DoDI 1332.39.  The rating IAW the VASRD in effect at the time for narcolepsy (8108) is “Rate as for epilepsy, petit mal (8911).”  Therefore, the criteria from the General Rating Formula for Major and Minor Epileptic Seizures are used for the Board’s rating.  The military neurologist’s NARSUM and the record indicated the clinical picture and the diagnostic testing of overnight polysomnogram and mean sleep latency testing led to a diagnosis of Narcolepsy.  The CI continued to have daytime somnolence despite being on stimulant medication.  The record and pre-separation VA exams all documented that the CI had daytime somnolence and falling asleep despite taking stimulant medication.  Involuntarily falling asleep would constitute a minor seizure for VA rating purposes.  The frequency of the CI involuntarily falling asleep was not definitively documented in the record.  The Board deliberated predominately between the 40% criteria of “averaging at least 5 to 8 minor seizures weekly,” or the 20% criteria of “at least 2 minor seizures in the last 6 months.”  The record indicated the CI was profiled from driving military vehicles, but was still permitted to drive.  The entire pre-separation record was reviewed to assess frequency.  The VA rated the CI for this condition based on daily occurrence, but the Board did not find conclusive evidence of that frequency.  However, the preponderance of the record indicated falling asleep during the daytime appeared much more frequently than two episodes in six months.  After consideration of all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 40% for the narcolepsy condition, coded 8108.  

Neck and Back (Including Right Leg [RLE] Radiculopathy) Conditions.  The PEB’s DA Form 199 reflected application of the USAPDA pain policy for rating the spine conditions, and the Board applied the VASRD absent that policy.  There were two goniometric range of motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation.  Both of these exams are summarized in the chart below.  

Lumbar & Cervical	Separation Date:  20041223	
Goniometric ROM	MEB - 20040827	VA C&P - 20040916	
	Lumbar	Cervical	Lumbar	Cervical	
Flexion	90⁰	40⁰	50⁰	35⁰	
Combined	210⁰	215⁰	175⁰	245⁰	
§4.71a Rating	10%	10%	10%	10%	
Comments	Normal Gait	+ Spurling’s	VA 20% for functional impairment 		

Using either the military or the VA ROMs, both cervical and lumbar spine rates at 10%.  The VA rating of 20% for the lumbar condition was granted for “functional impairment” predominately by history that was not clearly substantiated in the remainder of the record.  The VA also rated the CI’s right leg radiculopathy at 10%.  By multiple exams, the CI’s RLE radiculopathy was predominately pain, which IAW 4.71a and the General Rating Formula for Diseases and Injuries of the Spine is rated under the spine code: “With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.”  The CI did have episodic non-pain radiculopathy of the RLE, but had normal gait, strength and sensory/motor exams.  The non-pain radiculopathy did not interfere with performance of duty or wear of military equipment or uniforms.  The CI also had upper extremity radiating pain on provocative testing (positive Spurling’s) which is considered in the cervical spine rating.  There was therefore no unfitting peripheral nerve impairment in this case.  After due deliberation, considering all of the evidence there is not reasonable doubt in the CI’s favor to justify a Board recommendation for other than the 10% rating assigned by the PEB for the neck condition with a change of code to 5242.  Additionally, the Board recommends a separation rating of 10% for the lower back condition, coded 5242.  All evidence considered there is not reasonable doubt in the CI’s favor supporting addition of RLE or any other radiculopathy as an unfitting condition for separation rating.  

Left Shoulder Condition.  The CI had MRI evidence and a clinical picture of left rotator cuff degeneration.  Although the NARSUM stated “full active range of motion,” the CI had a positive impingement sign and “pain with internal rotation and abduction against resistance.”  The pre-separation VA exam showed full forward elevation (180°) and painful left shoulder ROMs of abduction 135° (normal 180°), external rotation 75° (normal 90°) and internal rotation 75° (normal 90°).  After due deliberation, considering all of the evidence and with application of VASRD §4.59 (painful motion), the Board recommends a separation rating of 10% for the left shoulder condition, coded 5299-5203.  

Other DES Noted Conditions (Fibroids and Migraines).  Both headaches and fibroids were mentioned in the DES package.  The migraines treated with medication and fibroid conditions were chronic and stable.  They were not profiled or noted in the Commander’s statement.  No link to fitness is in evidence for the fibroids condition.  The CI had two documented episodes of headaches leading to a duty restriction in two years; otherwise her headaches were controlled on medications.  Neither the physical profile nor the Commander’s statement identified any conditions other than the narcolepsy, neck, back, and shoulder conditions.  The only documented physical limitations were those attributed to the adjudicated conditions.  All evidence considered there is not reasonable doubt in the CI’s favor supporting addition of fibroids or migraine as unfitting conditions for separation rating.  The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.  

Other Conditions (Major Depression).  The VA rating examination of 20080724 made an Axis I diagnosis of:  “Major Depression secondary to physical problems (narcolepsy, chronic pain and migraines), Panic Disorder without Agoraphobia.” The exam indicated an initial diagnosis and treatment in Jan 2006 for Adjustment Disorder with depressed and anxious mood.  The VA granted a 50% rating for Major Depression (50%) effective 20090223.  There was no mention or indicator of Major Depression or any other Axis I mental health condition noted in the DES package other than narcolepsy.  The MEB history was negative for depression or excessive worry, and there was no indication in any appeal to the Army DES that depression was an ongoing issue proximate to separation.  There was no indication by profile or Commander’s statement that raised any other adjudicated conditions to a level that interfered with duty.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  This condition and any other contended condition not associated with the recommendations already rendered by the Board remain eligible for consideration by the Army Board for Correction of Military Records (ABCMR).  

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 narcolepsy and the USAPDA pain policy for rating the neck, back and left shoulder conditions was operant in this case, and the conditions were adjudicated independently of that regulation and policy by the Board.  In the matter of the narcolepsy condition, the Board unanimously recommends a rating of 40%, coded 8108, IAW VASRD §4.124a.  In the matter of the neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication of 10% except for changing the code to 5242.  In the matter of the LBP condition, the Board unanimously recommends a rating of 10%, coded 5242, IAW VASRD §4.71a.  In the matter of the left shoulder condition, the Board unanimously recommends a rating of 10%, coded 5299-5203, IAW VASRD §4.71a.  In the matter of the right leg radiculopathy, migraine and fibroids conditions or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.  

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 her prior medical separation.  

UNFITTING CONDITION	VASRD CODE	RATING	
Narcolepsy 	8108	40%	
Cervical Spine, DDD w/C5-C6 Disc Bulge	5242	10%	
Lumbar Spine, DDD 	5242	10%	
Left Shoulder Impingement 	5299-5203	10%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090710, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.