RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01122
BRANCH OF SERVICE:  Army	BOARD DATE:  20150624
SEPARATION DATE:  20090121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Combat Engineer) medically separated for a low back condition.  The low back condition 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 P2L3 profile and referred for a Medical Evaluation Board (MEB).  “Lumbar spondylosis L5-S1 and L4-5 with degenerative disc disease & L5-S1 anterior listhesis with chronic pain without myelopathy but with neuritis pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other medically acceptable conditions (post-concussion syndrome [PCS], traumatic brain injury [TBI], mild with post-traumatic headaches, hearing loss, obstructive sleep apnea and gastroesophageal reflux disease).  The Informal PEB adjudicated “degenerative arthritis of the lumbar spine described as L4-5 and L5-S1 degenerative disc disease with slight L5-S1 anterior listhesis” as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The US Army Physical Disability Agency completed an Administrative Correction which had no bearing on the rating or disposition.  The CI made no appeals and was medically separated.

CI CONTENTION:  The applicant makes no specific contention in his application.  His complete submission is at Exhibit A.

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 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/Naval 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 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:

PDA Admin Corr – Dated 20090105	VA - (1 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Lumbar Spine…	5242	20%	L5-S1 Disc Disease  with L3-4 and L4-5 Disc Protrusion, L5-S1 Spondylolisthesis and Lumbar Strain	5242-5243	10%	20081216	
Post-Concussion Syndrome,  TBI, Mild With  Post-Traumatic Headaches	Not Unfitting	Chronic Post-Traumatic Headaches as a Residual of Post Traumatic Brain Injury	8199-8100	10%	20081216	
Hearing Loss	Not Unfitting	No VA Entry	
OSA 	Not Unfitting	OSA	6847	50%	20081216	
GERD	 Not Unfitting	GERD	7399-7346	10%	20081216	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 0	
Rating:  20%	Combined Rating:  60%	
Derived from VA Rating Decision (VARD) dated 20090225 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  The service treatment record (STR) documents that the CI sustained multiple blast exposures while deployed to Iraq.  The CI reported his tactical vehicle was struck by six improvised explosive devices (IEDs) and two rocket propelled grenades (RPGs) between August 2007 and January 2008.  The CI denied loss of consciousness (LOC) with the blasts.  The 2 July 2008 lumbar spine X-ray showed disc space narrowing between L5 and S1.  There was a mild anterior subluxation (incomplete or partial dislocation) of the transitional L5 related to spondylolisthesis (forward displacement of vertebra after a fracture).  The 5 August 2008 lumbar spine magnetic resonance imaging (MRI) showed mild disc desiccation at L3-L4, L4-L5, and L5-S1.  The broad-based posterior disc protrusions at L3-L4 and L4-L5 caused mild to moderate bilateral foraminal (nerve root opening) stenosis (narrowing).  The 14 August 2008 electrodiagnostic study impression listed normal electromyogram (EMG - measures electrical activity of muscles)/nerve conduction velocity (NCV - measure electrical signal velocity) of the lower extremities.  At the 4 September 2008 pain management encounter the CI complained of “low back pain and left leg pain since 9/11/2007.”  The CI complained of constant, daily, sharp, 3-4/10, low back pain (LBP) with radiation to the left leg.  The history recorded the CI “was reportedly involved in eight separate IED explosions, and started having axial lumbar back pain with radiation into left leg, questionably in S1 dermatomal distribution from September 2007.  He has been given a trial of multiple analgesic medications, including centrally acting muscle relaxants, benzodiazepines, nonsteroidal anti-inflammatory drugs, anti-epileptic medications (Neurontin) and opioid agonist-antagonist (Darvocet).  He has also failed trial of physical therapy [PT].”  Physical exam showed a normal spine contour without exaggerated cervical/lumbar lordosis (anterior spine curvature).  Strength, sensation, and reflexes (2+) were normal.  Cervical and lumbosacral spine range-of-motion (ROM) for flexion, extension, and lateral rotation were within normal limits.  Pain management provided a series of three lumbar transforaminal epidural steroid injections to the left side at L4-L5 and L5-S1.  On 7 October 2008 PT measured thoracolumbar ROM with a goniometer.  They documented an abnormal gait due to guarding with no abnormal spinal contour or Waddell signs.  They reported abnormal limitation of motion due to pain and mechanical dysfunction.  The ROM values are in the chart.  The 29 October 2008 narrative summary (NARSUM) addendum by orthopedic surgery recorded “he describes had multiple injuries to his low back, no specific Injury, while deployed in Iraq.  Patient now has chronic low back pain.  He has failed conservative management.  Failed epidural steroid injections … also describes left lower extremity tingling, numbness, radiating pain, but no bowel or bladder or any other complaints.”  The physical exam recorded 0/5 Waddell signs, sensation intact to bilateral lower extremities, 5/5 in all muscle groups tested and reflexes were symmetrical with clonus [rhythmic muscular spasm].  The NARSUM, 2 months prior to separation, cited the orthopedics NARSUM addendum and recounted the LBP history and interventions to date.  The examiner documented “He continues with chronic daily pain rated 6/10 with medication, and 9/10 without medication.  He is unable to perform any strenuous physical activities. … he reports episodic numbness and pain in the left lower back, hip and lateral thigh to the lateral side of the left foot.”  The physical exam showed a mildly antalgic (assuming a posture or gait to lessen pain) gait and slight limp favoring the left.  The CI was able to heel and toe walk with pulling and pain in lower back (L>R).  The thoracolumbar spine exam showed moderate spasm and flattening of the lower lumbar spine.  The straight leg raise test (assesses sciatic nerve root compression by a herniated disc) was markedly positive on left and mild on right.  Muscle tone, mass, and strength (5/5) was normal.  Reflexes (1-2+) were intact and symmetrical and there was no overt sensory loss.  The diagnosis listed lumbar spondylosis (spine degenerative disease), L5-S1 and L4-5 with degenerative disc disease and L5-S1 anterior listhesis with chronic pain, without myelopathy (injury, disease, irritation, or dysfunction of the spinal cord), but with neuritis pain.  The VA Compensation and Pension (C&P) exam, a month prior to separation, recounted the history and interventions.  It documented “He reports the following symptom(s) from the spine condition:  stiffness.  He has no numbness, loss of bladder control and loss of bowel control.  He reports pain in the LB which occurs constantly.  The pain travels to LLE.  The claimant reports the pain is sharp.  From 1 to 10 (10 being the worst pain) the pain level is at 6.  The pain can be elicited by physical activity.  It is relieved by rest and by [medications] … At the time of pain he can function without medication. … He states his condition has not resulted in any incapacitation. … he does not experience any functional impairment from this condition.”  The physical exam showed normal posture, a normal gait, and no assistive device for ambulation.  The muscle exam revealed no paralysis, fasciculations, spasticity, rigidity, weakness, atrophy or loss of tone.  There was symmetry of spinal motion with normal curves of the spine.  The thoracolumbar spine exam revealed tenderness in the lumbar region.  There was no muscle spasm, ankylosis (joint stiffening or immobility), or evidence of radiating pain on movement.  There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement.  Bilateral straight leg raising tests were negative.  Motor function, sensory function, and reflexes (2+) were normal.  The thoracolumbar spine ROM values are listed in the chart.  The ROM was additionally limited, after repetitive use, by pain.  It was not additionally limited by fatigue, weakness, lack of endurance, or incoordination.

The ROM evaluations 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)	Pain Manage ~5 Mo. Pre-Sep
	PT/NARSUM ~4 Mo. Pre-Sep
	VA C&P ~1 Mo. Pre-Sep
	
Flexion (90 Normal)	“within normal limits”	60/55/55 	80	
Combined (240)	-	190	230	
Comment	AO Comments	Goniometer used	AO Comments	
§4.71a Rating	0%	20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB, a month prior to separation, rated the low back condition 20%, coded 5242 (degenerative arthritis of the spine).  The PEB cited ROM, flattening of the lumbar spine due to spasm, mildly antalgic gait, and 5/5 strength.  The VARD rated the low back condition 10%, coded 5242-5243 (degenerative arthritis of the spine-intervertebral disc syndrome).  The VARD cited ROM, ROM limited by pain, tenderness, degenerative arthritis, and degenerative disc disease without muscle spasm, abnormal spinal contour, abnormal gait, or signs of radiculopathy/neuropathy.  Board members agreed that the limitation of motion in the PT/NARSUM exam was consistent with 20% based upon the general rating formula for diseases and injuries of the spine.  The ROM in the C&P exam was consistent with a 10% rating.  Other routes to a rating higher than the PEB’s 20% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45; and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  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’s 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 PCS with mild TBI and post-traumatic headaches, the obstructive sleep apnea (OSA) with continuous positive airway pressure (CPAP), gastroesophageal reflux disease (GERD), and hearing loss 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.

Contended PCS Condition.  The STR documents that the CI sustained multiple blast exposures while deployed to Iraq.  The 9 October 2008 head/brain CT showed no acute intracranial abnormality.  The NARSUM TBI addendum documented the CI “admits to daily headaches.  Baseline 4-6/10 pain, worsening to 10/10 frequently.  Headaches are left temporal, dull, and last 4-5 hours.  The headaches respond to Midrin and resemble migraine or vascular-type headache.  The severe headache episodes impact his ability to function a[t]s work.  Overall, his headaches appear stable.”  The CI complained of slight imbalance associated with severe headache episodes but denied dizziness, vertigo, weakness, paralysis, sleep disturbance, or fatigue.  The CI complained of mild memory impairment but denied other cognitive problems to include decreased attention, difficulty concentrating, or difficulty with executive functions.  The CI denied mood swings, anxiety, depression, irritability, restlessness, or seizures.  The diagnoses listed PCS, mild with previous brief LOC, with residual headache and mild memory impairment, not disqualifying and headache, migrainous component, post-traumatic, non-prostrating, not disqualifying.  The 17 November 2008 brain MRI showed no evidence for focal intracranial hemorrhage (bleed), infarct (dead tissue from lost blood supply), or space-occupying mass.  The 19 November 2008 neuropsychological screening for cognitive impairment documented “ … IED - September 11, 2007 … felt dazed and confused for a few seconds afterward, headaches sporadic … RPG - December 2007 … felt dazed and disoriented for a few seconds, ears may have rung, he does not recall clearly.  Sporadic headaches … IED blast in January 2008 … headaches, ears rang … RPG March 2008 … feeling dazed, headaches became daily after this.  Ears rang, but do not ring presently … RPG# 2. No increased irritability, no sleep problems, no other cognitive difficulties endorsed by SM, other than he states he has some forgetfulness or occasional memory lapses, does not see it as problematic or unusual.  No LOC subsequent to any of the above blasts.”  Neuropsychological testing results listed “Based on the results of this screening, there is no indication of impairment which warrants further neuropsychological testing.  Any current results below average were in the middle to high end of the low average range of scores ….”  The C&P exam documented “The claimant reports headaches described as left sided head pain trigger - spontaneously; relieved - Midrin and Topamax with benefit and w/o apparent side effects.  When headaches occur, he is able to go to work but requires medication.  He experiences headaches on the average of 4 times per week and they last for 2 hour(s).  He reports no numbness, tingling and burning sensations.  The claimant reports no experiences of weakness or paralysis.  He does not report having any mental symptoms such as:  mood swings, confusion, slowness of thought, problems with attention, difficulty understanding directions, problems reading, memory problems or anxiety/depression.  He indicates his symptoms, in general are stable.  The claimant reports that he does not experience any functional impairment from this condition.”   The diagnoses listed “For the claimant's claimed condition of CHRONIC POST-TRAUMATIC HEADACHES, the diagnosis is headache syndrome; tension headaches. … For the claimant's claimed condition of POST CONCUSSION SYNDROME, there is no diagnosis because there is no pathology to render a diagnosis.  The claimant does not have a TBI.”  While the PCS was profiled, a P-2 profile is not routinely associated with unfitting impairment, and does not mandate MEB referral IAW AR 40-501.  Though the PCS was implicated in the commander’s statement, it met retention standards by the MEB, and was considered to be not unfitting by the PEB.

Contended OSA Condition.  The STR documents that the CI was referred for polysomnography (sleep study) to evaluate for OSA because of a history of snoring and witnessed apneas (cessation of breathing).  The CI denied excessive daytime sleepiness.  The 29 October 2008 sleep study conclusions documented moderate OSA occurred with moderate hypoxemia (decrease blood oxygen).  It recommended that the CI would potentially benefit from weight loss.  The preliminary polysomnogram report documented “He reports an Epworth SIeepiness Scale of 8 out of a possible 24 (normal being less than 10).  His Pittsburgh Sleep Quality Index was 6 out of a possible 21 (normal being less than 6). … CLINICAL IMPRESSION: … This exam is suggestive of moderate Obstructive Sleep Apnea.  The patient should benefit from an overnight titration of nasal Continuous Positive Airway Pressure [CPAP] in the sleep lab followed by a home trial of CPAP therapy.”  The NARSUM documented “The SM was told by his partner that he had some spells of stopping breathing and snoring loudly.  He had not noted any particular problem with daytime drowsiness or other symptoms.  A Sleep study 10/29/2008 showed moderate obstructive sleep apnea with moderate hypoxemia.  He was titrated on 11/21 /2008 with CPAP and reports he is sleeping better, but no other real changes reported.  At this point, the SM should be continued on his trial of CPAP, but there is no indication that he fails retention standards at this point.”  It listed the diagnosis of OSA with CPAP (P-2) as medically acceptable.  The C&P exam documented “The claimant reports being diagnosed with obstructive sleep apnea, with CPAP. … He has no trouble staying awake during the daytime … treatment includes a … [CPAP] machine.  The claimant reports that he does not experience any functional impairment from this condition.”  While the OSA was profiled, a P-2 profile is not routinely associated with unfitting impairment.  The OSA was not implicated in the commander’s statement, met retention standards by the MEB, and was considered to be not unfitting by the PEB.

Contended GERD Condition.  The STR NARSUM documented “SM has been treated for reflux symptoms [heartburn, acid taste in throat, mild nausea feeling] for 2 years and stable on Nexium [proton pump inhibitor].”  It listed the diagnosis of GERD (P-1) as medically acceptable.  The 22 December 2008 upper gastrointestinal series showed mild GERD.  The C&P exam documented “The claimant reports heartburn.  He has no dysphagia [difficulty swallowing], epigastric pain, scapular pain, arm pain, haematemesis [vomiting blood], passing of black-tarry stools, reflux and regurgitation of stomach contents and nausea and vomiting. … The treatment is Nexium with benefit and w/o apparent side effects. … he does not experience any functional impairment from this condition.”  The GERD was not profiled, not implicated in the commander’s statement, met retention standards by the MEB, and was considered to be not unfitting by the PEB.

Contended Hearing Loss Condition.  While the hearing loss was profiled, an H-1 profile is not routinely associated with unfitting impairment.  The hearing loss was not implicated in the commander’s statement, met retention standards by the MEB, and was considered to be not unfitting by the PEB.

All contended conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  The Board determined that the preponderance of evidence indicated that these conditions were not unfitting for continued military service.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determinations for the PCS, OSA, GERD, and hearing loss conditions and so no additional disability ratings are 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.  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 low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PCS, OSA, GERD, and hearing loss conditions, 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.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140302, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX, AR20150015751 (PD201401122)

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,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA