RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00494
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Unit Supply Specialist, medically separated for “low back pain” and “bilateral knee pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI was not evaluated for his lip, PTSD, feet, shoulder, hand, headaches and sleep apnea.  The CI’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 - 20061030	VARD - 20071114	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Degenerative Arthritis of Lumbar Spine	5242	10%	20070710	
Bilateral Knee Pain	5003	10%	Degenerative Joint Disease L Knee	5010	10%	20070710	
			Degenerative Joint Disease R Knee	5010	10%	20070710	
Severe Obstructive Sleep Apnea (OSA)	Not Unfitting	Sleep Apnea	6847	50%	20070710	
Left Shoulder Impingement Syndrome	Not Unfitting	Left Shoulder Impingement Syndrome	5201	10%	20070710	
Bilateral Ankle Instability	Not Unfitting	Status Post Right Ankle Injuries With DJD of the MT- 1 Joint	5271	10%	20070710	
		Status Post Right Ankle Injuries With DJD of the MT- 1 Joint	5271	10%	20070710	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY: 

Low Back Pain (LBP).  The CI first experienced LBP after a spinal tap was performed in 1993 and persisted throughout his military career with associated numbness in his left leg.  X-rays revealed degenerative changes within the lumbosacral spine.  Electrodiagnostic studies performed in July 2006 did not reveal any peripheral neuropathy or myopathy (nerve or muscle abnormality) in the lower extremities.  Despite non-surgical treatment, his painful symptoms remained and he was permanently profiled and referred to a Medical Evaluation Board (MEB).  There were no periods of VASRD defined incapacitation.  The MEB narrative summary (NARSUM) examination on 11 August 2006 (4 months prior to separation) noted the CI’s chief complaint as LBP without further description of symptoms.  His physical examination (PE) revealed tenderness over the lumbosacral spine as well as decreased and painful motion of the thoracolumbar spine.  His diagnosis was listed as chronic LBP secondary to DJD of the lumbar spine, with left L5-S1 radiculopathy.  At the VA Compensation and Pension (C&P) examination on 10 July 2007, performed 7 months after separation, the CI endorsed an aching 5/10 LBP that shot down into his left leg twice a day with a duration of symptoms lasting 3 hours each episode.  His painful symptoms were elicited by physical activity and relieved with rest and pain medication.  Utilizing medication, he could function at the time of painful episodes.  His functional impairment was noted as, "I cannot lift much weight."  The VA PE revealed a normal gait, full range-of-motion (ROM) of the thoracolumbar spine with pain beginning at normal endpoints.  Repetitive spinal motion was additionally limited due to pain, weakness, and lack of endurance (additionally limited by 0 degrees).  His diagnosis was listed as degenerative arthritis of the lumbar spine.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA utilized similar primary codes of 5237 (lumbosacral strain) and 5242 (degenerative arthritis), respectively; and rated 10% citing pain limiting ROM.  Board members first agreed that a greater exam probative value (PV) be apportioned to the NARSUM due to close reference to the DOS.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) or combined range-of-motion (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM examination.  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.  

Bilateral Knees.  The CI had a long history of bilateral knee pain.  Orthopedics diagnosed bilateral degenerative changes secondary to X-rays and physical findings.  Reported symptoms included cracking and popping of both knees and serial examinations did not reveal any instability.  The MEB PE revealed full but painful motion of both knees as identified by a painful McMurray test.  The CI had patellar grind bilaterally, markedly worse on the right than the left.  Instability tests were negative.  His diagnosis remained DJD of both knees.  At the VA C&P exam the CI reported bilateral knee pain occurring five times per day with lasting 2 hours per episode.  The CI endorsed weakness and give-away when maneuvering stairs as well as cramping and stiffness when trying to stand after sitting.  The VA examination noted tenderness and guarding of both knees without edema, weakness, or subluxation.  The right knee revealed locking pain, crepitus, and joint effusion.  ROM was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a bundled 10% rating under the 5003 code (degenerative arthritis), whereas the VA separately rated each knee under the 5010 code (traumatic arthritis) at 10% each.  The Board first considered whether each knee condition remained separately unfitting, having decoupled them from the combined PEB adjudication.  The recorded evidence of the presence of joint effusion, locking pain, and crepitus reflected that the right knee was associated with more pathology than the left knee.  However, both knees demonstrated abnormal pathology to include the presence of painful motion and therefore, members agreed that the preponderance of evidence showed that each knee separately considered would render the CI to be unfit due to the presenting pathology.  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 each knee coded 5003.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the obstructive sleep apnea (OSA), left shoulder impingement syndrome, and bilateral ankle instability conditions were 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 left shoulder and bilateral ankle conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  Both conditions were reviewed and considered by the Board.   There was no performance based evidence from the record that either of these conditions 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 either the left shoulder or the bilateral ankles so no additional disability ratings are recommended.

The severe OSA condition was profiled and implicated in the commander’s statement.  Specifically, the commander noted “Without the use of his C-PAP [continuous positive airway pressure] machine every night, it becomes difficult for [the CI] to concentrate and stay awake during the day.”  Board members deliberated and agreed that the preponderance of the evidence with regard to dependency on C-PAP in relation to functional impairment favors a recommendation that the OSA condition be found as an additional unfitting condition for disability rating.  VASRD §4.97 provides for a minimum rating of 50% for OSA requiring a breathing assistance device, and the evidence establishes that this criterion was met.  There was no evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or requirement for a tracheostomy to support a 100% rating.  In consideration of these facts, the Board unanimously recommends a disability rating of 50% for the OSA condition, coded 6847.

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral knee condition, the Board unanimously recommends separate disability ratings of 10%, coded 5003 IAW VASRD §4.71a.  In the matter of the contended OSA condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  There were no other conditions within the Board’s scope of review for consideration. The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic LBP	5237	10%	
Left Knee Pain 	5003	10%	
Right Knee Pain	5003	10%	
Severe OSA	6847	50%	
RATING (w/ BLF)	60%  	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX, AR20160005813 (PD201400494)

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 re-characterize 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:
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA