RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE:  PD1300192
BRANCH OF SERVICE:  Army		BOARD DATE:  20131018
SEPARATION DATE:  20030428

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M/Motor Transport Operator) medically separated for a back problem and obstructive sleep apnea (OSA).  The CI’s back problems began in 1995 when he strained his back doing heavy lifting and his sleep apnea was diagnosed in 2002.  The conditions 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 P3/L3 profile for his neck and low back pain with degenerative disc disease (DDD) and sleep apnea, and referred for a Medical Evaluation Board (MEB).  The back and sleep apnea conditions, characterized as “lumbar spine, DDD w/chronic low back pain” and “obstructive sleep apnea (OSA), requiring CPAP” [continuous positive airway pressure], were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded 10 other conditions for PEB adjudication.  The PEB adjudicated “chronic low back pain w/DDD” and “obstructive sleep apnea, with full relief of symptoms w/CPAP” as unfitting, rated 10% and 0% respectively, with application of Veterans Affairs Schedule for Rating Disabilities (VASRD) and likely application of DoDI 1332.39.  The remaining 10 conditions submitted by the MEB were adjudicated as not unfitting.  The CI did not concur with the PEB findings; however, he chose not to request a Formal PEB or submit a written rebuttal.  The US Army Physical Disability Agency reviewed the case and upheld the PEB’s findings.  The CI was then separated.

CI CONTENTION:  The CI submitted a two page letter with his application, which was reviewed by the Board and considered in its recommendations, in which he requests review of the following additional conditions:  neck with headache issues, posttraumatic stress disorder (PTSD), and OSA.  The CI also identifies the rating he received for his back.

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 and OSA conditions are addressed below.  Additionally, the requested review of the neck with headaches, and PTSD conditions are within the DoDI 6040.44 defined purview of the Board and will be reviewed.  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 20021230	VA - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5295	10%	Lumbar Spine Degenerative Arthritis	5293-5292	20%	20030314	
OSA	6847	0%	Sleep Apnea	6847	50%	20030314	
PTSD	Not Unfitting	PTSD & Claustrophobia	9411	30%	20030314	
Cervical Spine Arthritis	Not Unfitting	Cervical Spine Degenerative Arthritis w/ Headaches	5293-5290	20%	20030314	
Occasional Headaches	Not Unfitting					
Dyshidrotic Eczema	Not Unfitting	Dyshidrotic Eczema	7806	0%	20030314	
IBS	Not Unfitting	IBS	7346-7319	0%	20030314	
Left Ankle Pain	Not Unfitting	Left Ankle	5271	10%	20030314	
Carpal Tunnel Syndrome	Not Unfitting	Bilateral Carpal Tunnel Syndrome	8599-8515	NSC	20030314	
Right Elbow	Not Unfitting	Right Elbow	5213	10%	20030314	
Sinus Congestion	Not Unfitting	No VA Entry	
Elevated Liver Function Test	Not Unfitting		
No Additional MEB/PEB Entries	Other x7	20030314	
Combined:  10%	Combined:  90%	
Derived from VA Rating Decision (VARD) dated 20030618 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service 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, operating under a different set of laws.  The Board considers VA evidence within a 12-month interval only to the extent that it reasonably reflects the disability at the time of separation.  The Board acknowledges the CI’s contention for ratings of his neck pain with headaches and PTSD conditions noted above which were determined to be not unfitting by the PEB.  Disability compensation may only be offered for those conditions that cut short the member’s service career.  Should the Board judge that any contested condition was most likely incompatible with military service, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Chronic Low Back Pain.  The CI had a history of intermittent low back pain since the mid-1990s.  The documentation present for review begins 2 years prior to separation and was consistent with chronic musculoskeletal low back pain.  The CI received physical therapy and chiropractic treatment and several prescription medications (non-steroidal anti-inflammatory drugs, muscle relaxers, and occasional narcotic medications) without significant relief.  Two plain film X-rays were normal.  A magnetic resonance imagining study performed 13 months prior to separation revealed a desiccated disc with a bulge and a probable annular tear at L4-5.  No disc herniation was seen.  The MEB physical exam performed 11 months before separation noted tenderness to palpation in the general lumbar area with palpable spasm in the right lumbar paraspinal muscles.  The MEB exam accomplished 10 months prior to separation documented a lumbar spine forward flexion of 0-75 degrees and a backward flexion of 0-20 degrees.  There was generalized tenderness to palpation in the lumbar area with palpable spasm in the right paralumbar area.  The narrative summary (NARSUM) prepared 4 months prior to separation noted occasional low back pain until March 1995 when the CI strained his low back loading field gear into a truck.  He was seen in the emergency room and diagnosed with acute mechanical low back pain and put on a temporary profile.  He continued to have low back pain off and on but he was able to manage it himself until his back pain flared up in June 2001, aggravated by running and prolonged sitting.  The pertinent physical exam findings were tenderness to pressure over the general lumbosacral area without palpable spasm or visible deformity.  Range-of-motion (ROM) was forward flexion 0-75 degrees and backward flexion 0-20 degrees.  Straight leg raising sign was positive at 80 degrees with complaints of increased low back pain but no radiation.  Waddell's signs were not present.  A detailed neurological examination noted inconsistent sensory responses in the lower extremities with nothing suggesting nerve root dysfunction.  At the VA Compensation and Pension (C&P) exam performed a month before separation noted no symptoms of radiculitis.  Physical exam findings were initially forward flexion of the lumbar 0-80 degrees and extension 0-25 degrees with mild paraspinal tightness.  Pain was rated as 3 out of 10 on the scale with Deluca testing; the low back became a little stiff, with no spasms or radiation down the lower extremities.  The ROM decreased to a forward flexion of 0-70 degrees and extension to 0-20 degrees.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the low back pain condition by applying VASRD code 5295 (lumbosacral strain) and rating it 10% specifically citing the VASRD language “…with characteristic pain on motion.”  The VA utilized the analogous code of 5293-5292 (limitation of motion lumbar spine) and rated it 20% based on a “moderate limitation of motion.”  The VASRD rating rules in effect at the time of separation relied on the subjective determination of slight, moderate or severe limitation of motion of the lumbar spine for assigning a disability rating.  When ROM values are present for review, by precedence, the Board assigns a higher probative value to those objective measurements for rating purposes with the caveat that it does not result in a lower overall disability rating recommendation.  The ROM rating criteria that became effective 5 months after the CI’s separation (and are still effective today) will be utilized to make a rating recommendation in this case.  Under the current General Rating Formula for Diseases and Injuries of the Spine, all documentation agrees that the CI’s disability was consistent with the 10% rating.  Additionally, members agreed that the preponderance of the evidence was more reasonably characterized as “slight” and did not reach the 20% rating level under any lumbar spine rating criteria in effect at the time of separation.  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 chronic low back pain condition.

Obstructive Sleep Apnea.  The NARSUM noted that the CI suspected he had a sleep disturbance during the Gulf War when he reported other soldiers noticed that while sleeping, his breathing would stop and he was hard to wake up.  After his return, he followed-up at a clinic in November 1991 but no clinical evaluation was performed.  He continued to have symptoms which grew to include worsening daytime drowsiness.  He recalled nodding off during driving, during meetings and after lunch.  His wife noted apnea and increased snoring.  He was referred for a polysomnogram in October 2002 which documented sleep disordered breathing with mild desaturations to 84% responsive to CPAP.  The respiratory disturbance index was 14.3 (a positive score when symptoms of OSA are present).  Because of the significant daytime symptoms, he was prescribed CPAP and responded positively.  His reported significantly decreased fatigue and daytime drowsiness.  He was no longer falling asleep while driving, during meetings or after lunch.  The VARD noted that a C&P exam was not accomplished and it relied on the CI’s MEB documentation to arrive at its rating.

The Board directs attention to its rating recommendation based on the above evidence.  The diagnosis of OSA, dependent upon CPAP, is well established from the CI’s polysomnogram in October 2002.  A favorable response to CPAP was also well documented.  The PEB assigned a 0% rating and based the fitness adjudication solely on field impediments to the use of CPAP.  Contemporary PEBs no longer consider OSA to be unfitting solely on that basis; but, this Board, by legal opinion and firm precedent, does not make contrary recommendations to a PEB determination that a condition was unfitting.  The VA rated this condition at 50% due to the requirement for constant use of a CPAP device.  Although the PEB’s rating adjudication had been acceptable by DoDI 1332.39 standards, the Board is obligated to a rating recommendation compliant with VASRD standards.  The VASRD in effect at the time of separation mandated a minimum rating of 50% under 6847 for OSA requiring a breathing assistance device.  In consideration of the evidence, and IAW DoDI 6040.44, the Board must recommend a disability rating of 50% for the OSA condition.  This case does not meet the criteria for 100% because at no time was there evidence of chronic respiratory failure with carbon dioxide retention or corpulmonale.  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 neck pain with headaches and PTSD 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.

The neck pain with headache condition was not judged to fail retention standards although it was noted on the profile completed for MEB processing.  The neck pain condition, along with low back pain, was implicated in the commander’s statement as “… does affect his ability to perform the duties associated with his MOS.”  The Board deliberated on the extent to which the neck pain contributed to the duty limitation expressed in the comprehensive, 4-page commander’s statement.  That statement overwhelmingly focused on the CI’s low back pain as causing his duty limitations, with the neck pain only briefly mentioned.  The Board reasoned that if the neck pain significantly interfered with the CI’s duty performance it would have been more prominently noted in the very detailed commander’s letter.  All treatment entries were reviewed by the action officer and considered by the Board.  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 neck pain with headache condition and no additional disability rating is recommended.

The PTSD condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All entries related to PTSD were reviewed by the action officer and considered by the Board.  The pre-separation psychiatric addendum specifically states, “The impairment from this condition does not preclude military service.  Without psychological intervention, his prognosis is fair.  His symptoms do not affect his military service.”  There was no performance based evidence in the record that the PTSD condition 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 PTSD contended condition and no additional disability rating is 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.  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 chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 neck pain with headaches and PTSD conditions, the Board unanimously recommends no change from the PEB determination as not unfitting and therefore cannot recommend them for additional disability ratings.  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	
Chronic Low Back Pain	5295	10%	
Obstructive Sleep Apnea	6847	50%	
Neck Pain with Headaches	Not Unfitting	
PTSD	Not Unfitting	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130417, 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 
(TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for xxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130021872 (PD201300192)

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