RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD1300145
BRANCH OF SERVICE:  Army	BOARD DATE:  20130815
SEPARATION DATE:  20081127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A10/Automated Logistics) medically separated for a lower back condition.  He experienced an onset of low back pain (LBP) in 2007 during a field training exercise; which was subsequently diagnosed as degenerative disc disease with lumbar radiculopathy; and, for which he underwent surgery later that year.  Post-operatively 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain with s/p lumbar fusion with osteoarthritis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified sleep apnea, which was designated as meeting retention standards.  The PEB adjudicated “spinal fusion, L5-S1, with persistent pain, without motor neurologic deficits, unresponsive to multiple therapeutic modalities” as unfitting, rated 20% citing criteria from the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The sleep apnea was not addressed by the PEB.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “The Army only rated me for my failed back surgery; I have been diagnosed with much more including another failed surgery for a deviated septem the Army tried to fix.  I have been diagnosed with TBI/PTSD which also is not in my Military rating, Sleep Apnea/Insomnia and was granted 80% disability through VA but only 20% from Army.”

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 rating for the unfitting back condition is addressed below.  The contended sleep apnea condition, which was designated as meeting retention standards by the MEB, is likewise addressed below.  The requested deviated septum and traumatic brain injury/posttraumatic stress disorder conditions were not identified by the PEB, and thus are not 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 20080821 	VA - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion, L5-S1	5241	20%	Status Post Lumbar Decompression, Discectomy, and Fusion L5-S1	5241	20%	20090304	
Sleep Apnea	Meets retention standards	Obstructive Sleep Apnea, Status Post Uvulopalatopharyngoplasty	6847	50%	20090304	
No Additional MEB/PEB Entries	Other x 6	20090304	
Combined: 20%	Combined: 60%	
Derived from VA Rating Decision (VARD) dated 20090402 (most proximate to date of separation [DOS]).  Right lower extremity radiculitis associated with status post lumbar decompression, discectomy, and fusion L5-S1 added 20100930 VARD as 8620 at 10%, effective 20081128.

ANALYSIS SUMMARY:  The Board acknowledges the disability rating currently assigned by the Department of Veterans Affairs (DVA), but must emphasize that the Disability Evaluation System 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 DVA, operating under a different set of laws.  The Board considers DVA evidence within 12 months of separation only to the extent that it reasonably reflects the disability at the time of separation.  The Board also acknowledges the CI’s contention for ratings of his sleep apnea condition which was determined by the MEB to meet retention standards.  Disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with military, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Lower Back Condition.  The CI’s back pain began in January 2007 after stopping a pallet from falling toward him.  Persistent back pain associated with radiation to the right leg was evaluated with magnetic resonance imaging, which showed bilateral herniated discs with impingement of the S1 nerve roots.  Electrophysiological studies disclosed bilateral L5-S2 radiculopathies, worse on the left.  An L5-S1 fusion procedure was performed in June 2007.  Although radicular symptoms improved post-operatively and electrophysiological studies normalized, improvement in back pain was slow and limited.  The narrative summary (NARSUM) dictated 6 months prior to separation, noted that significant pain and decreased range-of-motion (ROM) persisted, causing difficulty in tying shoes.  Examination revealed a slow, antalgic gait with use of a cane.  Lumbar paraspinal muscle tone was increased.  With repetitive motion, pain, weakness, fatigue and loss of endurance were said to be increased.  However, specific measured ROM after repetition was not documented except for two planes of motion.  Extension on first measurement was 15 degrees, while the average after an unspecified number of repetitions was 20 degrees.  Left lateral rotation on first measurement was 50 degrees and the average after an unspecified number of repetitions was 60 degrees.  Onset of pain during left lateral rotation occurred at 45 degrees during the first measurement and at an average of 15 degrees after repetition.  On 6 July 2008 (5 months prior to separation), the CI was involved in a motor vehicle accident (MVA) that resulted in worsening of his LBP.  A pain medicine evaluation performed on 5 August 2008 (4 months prior to separation) reported forward flexion “to about 40 degrees and extension to 10 degrees.”  At the VA Compensation and Pension exam performed on 4 March 2009 (approximately 3 months after separation), the CI stated that the progress in his low back condition was lost after the MVA.  Flare-ups of pain, usually from lifting, occurred once or twice per week and lasted up to 48 hours.  He used narcotic muscle relaxant medications for pain.  There were no periods of physician ordered incapacitation during the prior year.  Examination revealed muscle spasm, but a normal gait without assistive devices.  Spinal contour was not mentioned.  ROM was not additionally functionally limited following repetitive ROM testing.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	NARSUM ~ 6.5 Mos. Pre-Sep	VA C&P ~ 3 Mos. Post-Sep	
Flexion (90 Normal)	60 (62)	35 (37)	
Extension (30)	20	5 (7)	
R Lat Flexion (30)	10 (8)	10 (8)	
L Lat Flexion (30)	10 (12)	5 (7)	
R Rotation (30)	45	20 (19)	
L Rotation (30)	30 (60)	20 (22)	
Combined (240)	175	95	
Comment	+painful motion; muscle spasm and guarding, antalgic gait	+painful motion	
§4.71a Rating	20%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA assigned a 20% rating under the 5241 code (spinal fusion).  The Board agreed a 20% rating was supported by muscle spasm resulting in an abnormal gait on the NARSUM exam, flexion limited to 40 degrees on the pain medicine exam, and by flexion of 35 degrees and combined ROM of 95 degrees on the VA exam.  Criteria for the next higher 40% rating (forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine) were not in evidence.  The Board considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the 10% criteria under that formula.  Board members finally debated the application of VASRD §4.45 in this case, which allows for the next higher rating if evidence of additional functional loss after repetitive motion is evident.  While the NARSUM examiner stated that pain, weakness, fatigue and loss of endurance were increased after repetition, the data provided by the examiner does not support the conclusion.  In addition to not specifying the number of repetitions or actual measurements performed for most planes of motion, it appears that ROM likely did not decrease (on average it actually increased) after repetition of extension and left lateral rotation.  Furthermore, the VA examiner found no additional limitation after repetition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that sleep apnea was 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.  After reporting a history of difficulty sleeping during the Board process, a diagnosis of obstructive sleep apnea (OSA) was confirmed by a sleep study in January 2008.  A titration study in February 2008 confirmed that continuous positive airway pressure (CPAP) effectively relieved the condition.  Due to reported intolerance to CPAP, a surgical corrective procedure (uvulopalatopharyngoplasty) was performed in June 2008.  A pulmonary medicine note in August 2008 indicated the CI was “doing well” since surgery.  He continued to use CPAP on a nightly basis and “feels the CPAP is still helping.”  An Epworth sleepiness scale at that time was assessed as normal.  Routinely OSA is not considered unfitting solely on the basis of field and operational impediments to the use of CPAP.  There is no evidence in this case that OSA was associated with any unfitting impairments not corrected by CPAP.  The sleep apnea condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the sleep apnea condition significantly interfered with satisfactory duty performance.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended sleep apnea condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Spinal Fusion, L5-S1	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130404, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-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 xxxxxxxxxxxxxxxxxxxxxx, AR20130021856 (PD201300145)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl