RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00448
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040917

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E3, Wheeled Vehicle Repairer, medically separated for “chronic low back pain,” with a disability rating of 10%.

CI CONTENTION:  The CI contends for his low back pain, radiculopathy, and sleep apnea. The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040725	VARD - 20041026	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Chronic Low Back Pain and Left S5-S1 Radiculopathy Secondary to herniated Disk at L4-5 with Left leg Numbness	5243	20%	20040920	
Sleep Apnea	Not Unfitting 	Sleep Apnea	6847	50%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) began in 2001 after he injured his back from a fall while deployed overseas.  In March 2003, radiographic studies showed degenerative disc disease, and disc protrusion at L4-L5.  An orthopedic evaluation in January 2004 (8 months prior to separation) concluded with a diagnosis of chronic low back pain, and recommended against surgery.  Despite all treatment efforts, the back condition did not improve adequately to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB NARSUM examination noted complaints of LBP for 2 years.  Physical examination showed tenderness to palpation of the left paraspinal musculature.  Range of motion (ROM) is recorded in the chart below.

At the VA Compensation and Pension (C&P) examination in September 2004, performed 3 days after separation, the CI reported he went to physical therapy (PT) which helped for a short time. Epidural injection administered in 2003 did not help.  The CI was could not participate in any sports including fishing or riding his motorcycle. Driving over an hour caused problems.  Physical examination showed mild mid-back tenderness, but none on the lower back. The CI had pain on motion, pain on motion against resistance and pain on repeated movement. There was no edema, guarding, redness, heat, instability, weakness, or spasm.  Gait was normal.  The ROM evaluations in evidence which the Board weighed in arriving at its recommendation, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	MEB ~4 mos. Pre-Sep
(20040517)	VA C&P ~3 days Post-Sep
(20040920)	
Flexion (90 Normal)	70	60	
Combined (240)	(unable to calculate)	165	
Comment	ROM limited by pain	Pain on motion	
§4.71a Rating	10%	20%	

The Board directed attention to its rating recommendation based on the evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), citing decreased ROM due to pain (flexion 70 degrees).  The VA assigned a 20% rating using the 5243 code (intervertebral disc syndrome).  The Board noted that the VA C&P examination was just 3 days after separation, and therefore had significant probative value.  At that examination, there was 60 degrees of forward flexion.  IAW VASRD §4.71a, a 20% evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees.  Therefore, the Board determined that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees, but not greater than 60 degrees). 

The Board also considered the matter of radiculopathy.  The CI did have neurological symptoms; however, after review of the information in the record, there was insufficient evidence of clinically significant radiculopathy that interfered with performance of military duties.  The Board concluded there was no unfitting radiculopathy present at separation.  The Board also found insufficient evidence of incapacitating episodes which would justify a higher rating under diagnostic code 5243 (intervertebral disc syndrome).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% for the chronic LBP condition.  

Contended Conditions.  In September 2003, this CI was diagnosed with obstructive sleep apnea (OSA).  He was treated with nightly continuous positive airway pressure (CPAP).  This condition was adjudicated by the PEB as not unfitting.  The Board’s main charge with regard to the OSA condition, is to assess the fairness of the PEB’s adjudication that OSA was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The OSA was profiled, and was judged by the MEB to fail retention standards; however, it was not implicated in the commander’s statement.  The OSA condition was reviewed and considered by the Board.  There was insufficient performance-based evidence in the record that this condition significantly interfered with satisfactory duty performance.  The evidence in the service treatment record indicated that the OSA condition responded well to CPAP therapy.  After due deliberation, in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for the OSA condition and no additional disability rating  is recommended.

BOARD FINDINGS:  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  In the matter of the contended OSA condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board therefore recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain, with Herniated Disc L4-L5	5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140115, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXX, AR20160009855 (PD201400448)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

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.   

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:

CF: 
(  ) DoD PDBR
(  ) DVA