RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-00072
BRANCH OF SERVICE:  Army	BOARD DATE:  20141002
SEPARATION DATE:  20060407

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SSG/E-6 (88M/Motor Transport Operator) medically separated for chronic obstructive pulmonary disease (COPD) and chronic low back pain (LBP).  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 L3 profile and referred for a Medical Evaluation Board (MEB).  The COPD and LBP conditions, characterized as “COPD and degenerative disk disease (DDD) with central herniation L4-5,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Right meniscal tear and posttraumatic stress disorder (PTSD) was also submitted by the MEB as medically acceptable.  The Informal PEB adjudicated “chronic obstructive pulmonary disease and chronic low back pain” as unfitting, rated 10% and 0% respectively, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The right meniscal tear and PTSD conditions were not adjudicated by the PEB.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 COPD and LBP condition is addressed below.  The right meniscal tear and PTSD conditions 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 20060228	VA - (3.5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
COPD	6604	10%	COPD	6604	30%	20060821	
Chronic LBP	5299-5242	0%	DDD Lumbar Spine	5003-5242	10%	20060821	
Other x 0 (Not in Scope)	Other x 8	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20070625 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation.

COPD Condition.  The first evidence of COPD documented is a pulmonary function test (PFT) result dated 13 months prior to separation.  The overall results were consistent with “moderate obstruction.”  Three months later, the CI had a chest X-ray (CXR) that revealed probable atelectasis (a partial deflation of an area of the lung) in the left lower lung field.  A case management note documented that the CI’s primary care provider started him on an inhaler medication to manage his COPD.  Repeat PFTs, 9 months prior to separation, revealed “normal spirometry” with FEV1 of 90% predicted and FEV1/FVC of 86%.  Repeat CXR performed 3 months prior to separation was essentially within normal limits.  The narrative summary (NARSUM) prepared 6 months prior to separation noted the CI was diagnosed with COPD while serving in Iraq between January and August 2004.  The CI noted improvement in his symptoms with the prescribed medications (Singulair and Advair).  His lung exam was normal as documented on the DD Form 2808 dated 2 months prior to separation.  

At the VA Compensation and Pension (C&P) exam performed 4 months after separation, the CI reported he developed a lung infection in Iraq.  He indicated that he was in a high air pollution area and that he would have been exposed to diesel fumes, sulfur dioxide, nitrogen oxides, ozone and carbon monoxide.  His primary care provider diagnosed COPD as the CI was a long term tobacco abuser and continued to smoke.  The physical exam documented decreased breath sounds in the right and left lung fields.  The CXR dated 22 August 2006 was essentially normal. Although there were no actual PFT results documented in the C&P exam, the VARD contained the following statement:

“We have assigned a 30 percent evaluation because your VA examination, at the VA Medical Center Lexington, dated August 21, 2006, indicates that your pulmonary function tests revealed a ratio of FEV-1 to forced vital capacity (FEV1/FVC) of 65 percent. An evaluation of 30 percent is assigned whenever there is forced expiratory volume in one second (FEV-1) of 56 to 70 percent of predicted value; or the ratio of FEV-1 to forced vital capacity (FEV1/FVC) of 56 to 70 percent; or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) 56 to 65 percent predicted.”

The C&P exam however, did contain the following PFT interpretation: “Pulmonary Function Tests: Obstruction: Gold Stage 1: Mild COPD with no significant response to bronchodilators on this study.  No Restriction.  Diffusion decreased.”  The Global Initiative for Chronic Obstructive Lung Disease (GOLD) criteria are copied below for the reader’s convenience: 

In GOLD COPD, classifications are then used to describe the severity of the obstruction or airflow limitation.  The worse a person's airflow limitation is, the lower their FEV1. As COPD progresses, FEV1 tends to decline. GOLD COPD staging uses four categories of severity for COPD, based on the value of FEV1:
Stage I	Mild COPD	FEV1/FVC<0.70	FEV1≥ 80% normal	
Stage II	Moderate COPD	FEV1/FVC<0.70	FEV1 50-79% normal	
Stage III	Severe COPD	FEV1/FVC<0.70	FEV1 30-49% normal	
Stage IV	Very Severe COPD	FEV1/FVC<0.70	FEV1 <30% normal, or <50% normal with chronic respiratory failure present*	
* Usually, this means requiring long-term oxygen therapy.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the COPD condition by applying VASRD code 6044 (chronic obstructive pulmonary disease) and rated it 10% based on the VASRD rating criteria.  The VA also applied code 6044 but rated it 30% citing PFT results that were not documented in the evidence for review.  The Board noted the conflicting evidence contained in the evidence, specifically the PFT results documented in the VARD (supporting a 30% rating) versus the PFT interpretation documented in the C&P (supporting a 10% rating).  The 10% and 30% rating criteria for VASRD code 6044 are copied below for the reader’s convenience: 

FEV–1 of 56- to 70-percent predicted, or; FEV–1/FVC of 56 to 70 percent or; DLCO (SB) 56- to 65-percent predicted ………………………. 30%
FEV–1 of 71- to 80-percent predicted, or; FEV–1/FVC of 71 to 80 percent or; DLCO (SB) 66- to 80-percent predicted............................ 10%

The prior to separation PFT evidence did not meet the minimum compensable rating of 10% as the FEV1 was 90% predicted and the FEV1/FVC was 86%.  There were no specific after separation PFT values documented in the evidence, only an impression based on the GOLD criteria.  The “mild COPD” conclusion, according to the GOLD criteria, corresponds to an FEV1 greater than or equal to 80%.  Both the pre-separation PFT results and the post-separation “mild COPD impression” do not meet the 10% rating criteria IAW VASRD code 6044.  Board deliberations settled on assigning more probative value to the VARD data which was consistent with the 30% rating as applied by the VA.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the COPD condition.

Chronic LBP Condition.  While deployed in February 2004, the CI stepped in a hole and suffered a low back injury with resulting chronic pain.  He was initially treated with non-steroidal anti-inflammatory drugs, muscle relaxers and duty limitations.  His pain continued and a magnetic resonance imaging study in May 2004 revealed degenerative disc changes at L4-5 with a “mild posterior bulge.”  When his pain did not respond to continued conservative treatment and he developed right sided radicular pain, he was medically evacuated back state-side for treatment.  He has plain film X-ray of the lumbar spine that was normal.  He was evaluated by a neurosurgeon for his persistent low back pain with right sided radicular symptoms and intermittent right leg numbness.  The surgeon recommended continued exercises after the CI decided to defer the surgical procedure option they discussed.  Conservative therapy did not result in relief of his symptoms and he was referred into the Disability Evaluation System.  There was a physical therapy (PT) evaluation accomplished 8 months prior to separation and the pertinent findings are summarized in the chart below.  The NARSUM noted chronic back pain related to DDD with central herniation.  The physical exam simply said, “Low back pain with decreased range of motion.”  At the C&P exam, the CI reported that he continued to have LBP.  He was employed as a police officer and wore a 24-pound belt that exacerbated his back pain but did not change his work assignment.  He denied any bowel or bladder complaints and there was no radiculopathy.  The pertinent physical exam findings are summarized in the chart below.

The two goniometric range-of-motion (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)	PT ~8 Mos. Pre-Sep	VA C&P 3.5 Mos. Post-Sep	
Flexion (90 Normal)	25	65	
Combined (240)	-	200	
Comment	Pos. painful motion & muscle spasm; Neg. straight leg raise bilat.	Normal gait & posture; No Deluca criteria; Normal strength, reflexes & sensation	
§4.71a Rating	40%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic LBP condition by applying the analogous VASRD code of 5299-5242 (degenerative arthritis of the spine) and rated it 0%.  The VA also applied an analogous code of 5003-5242 and rated it 10% citing ROM measurements consistent with the 10% rating IAW the General Rating Formula for Diseases and Injuries of the Spine.  The Board considered the evidence present for review and all evaluations of the CI’s low back condition at least warranted a 10% evaluation.  The 8-month pre-separation PT evaluation contained ROM measurements consistent with a 40% rating.  It was also accomplished on a day when the CI had muscle spasms present which would temporarily decrease his ROM.  The C&P exam performed 3 months after separation documented ROM values consistent with a 10% evaluation.  It also documented resolution of the CI’s radicular symptoms and that he was able to work as a police officer without a change in assignment due to his back pain.  Board members agree that the C&P exam was the more probative evaluation and more accurately reflected the CI’s level of disability at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the low back pain condition.

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 COPD condition, the Board majority recommends a disability rating of 30%, coded 6604 IAW VASRD §4.97.  The single voter of dissent elected not to submit a minority opinion.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5242 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	
Chronic Obstructive Pulmonary Disease	6604	30%	
Chronic Low Back Pain	5242	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150006495 (PD201400072)

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 40% 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 40% 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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA