RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-01067
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20080829

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Security Forces Journeyman, medically separated for “low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The applicant contends that his sleep apnea was not correctly evaluated.  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 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 - 20080616	VARD - 20080530	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…DDD	5243	10%	Degenerative Disc Disease of the Lumbar Spine…	5242	10%	20080317	
Obstructive Sleep Apnea	CAT II	Obstructive Sleep Apnea	6847	50%	20080317	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Low Back Pain Due to Degenerative Disc Disease (DDD).  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began while deployed to Iraq with no specific injury or trauma.  Magnetic resonance imaging (MRI), December 2007, revealed DDD at L4-5, worse at L5-S1 with a disc protrusion or herniation at L5-S1, as well as and degenerative arthritis of the facet joints between the vertebra.  The lumbar curvature was noted to be normal.  At the time of a neurosurgery evaluation completed on 9 January 2008, the CI reported chronic low back pain aggravated by carrying military gear, bending, and prolonged standing.  He denied pain, weakness or tingling in the legs, and bowel or bladder problems.  On examination the lower extremity strength, reflexes sensation, and gait were normal.  The neurosurgeon reviewed the MRI and recommended non-surgical treatment.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a MEB

At the time of the physical therapy clinic appointment on 9 November 2007, 10 months before separation, thoracolumbar ROM after repetition was limited as recorded in the chart.  Provocative maneuvers for signs or symptoms of radiculopathy were negative.  At a later physical therapy clinic appointment on 18 Mar 2008, 5 months before separation, the CI complained of variable symptoms, but denied any lower extremity symptoms, and was noted to flex reaching fingers to the mid-shins (approximately 80 degrees), with normal side bending and extension, accompanied by pain at the end of the ROM.  At the MEB/Joint VA, DoD Pilot Program examination, dated 17 March 2008, 5 months prior to separation, the CI reported persistent low back pain, diminished endurance, decreased ability to do prolonged standing, and limitation of movement with no leg pain or weakness.  On examination there was no muscle spasm.  Thoracolumbar ROM was limited as recorded in the chart and there was no additional limitation with repetitive motion.  Lower extremity strength and reflexes were normal, and straight leg raising produces back pain on the left but no signs or symptoms of radiculopathy.  The MEB NARSUM dated 7 April 2008 noted normal gait and posture, and normal lower extremity strength.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a rating based on the Joint VA/DoD Pilot Program rating of 10% under code 5243 (intervertebral disc syndrome) and a VA exam dated 17 March 2008, although the VA coded it as 5242 for degenerative arthritis of the spine.  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) reported on the Joint VA/DoD Pilot Program exam. There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  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 the obstructive sleep apnea (OSA) was not unfitting.  The Board’s threshold for countering fitness determinations is preponderance of the evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI presented to the clinic in May 2007 complaining of daytime sleepiness and snoring for a few months.  After evaluation by otolaryngology and a sleep study the CI underwent a tonsillectomy (August 2007) and was treated with a continuous positive airway pressure (CPAP) device for mild OSA beginning in September 2007.  At the primary care clinic on 10 October 2007 the examiner noted that since starting CPAP, his fatigue and daytime somnolence had resolved.  The OSA condition was not specifically implicated on the Air Force Duty Limiting Report as interfering with duty performance.  The commander’s statement dated 12 December 2007, commented on a considerable amount of work missed due to sleep apnea treatment.  Evidence shows numerous treatment notes dated from May through October 2007, but no subsequent visits are in the record for complaints of OSA.  At an appointment on 8 January 2008, the examiner noted the CI was not feeling tired.  At the 27 February 2008 VA General Medical evaluation, the examiner indicated there were no complaints of fatigue or symptoms of OSA.  The 17 March 2008 VA examination noted OSA “using CPAP nightly with benefit.”  OSA was listed on the MEB dated 8 April 2008 as referred to the PEB.  However, there was no performance based evidence from the record that the CI had duty-limiting excessive daytime sleepiness or that OSA treated with CPAP significantly interfered with satisfactory duty performance; and the PEB noted that the CPAP treatment improved his daytime sleepiness symptoms.  There was insufficient evidence showing that OSA was associated with any functional impairment that was not corrected by CPAP.  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 OSA condition and no additional disability rating is recommended. 

BOARD FINDINGS:  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 OSA condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140228, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-01067.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings