RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01153
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Avenger Crewmember, medically separated by the Informal Physical Evaluation Board (PEB) for “lower back pain,” with a disability rating of 10%.  

CI CONTENTION:  The applicant contends his service-connected disabilities have worsened and additional conditions have developed due to his military service.  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 - 20080702	VARD - 20081222	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lower Back Pain	5299-5237	10%	Degenerative Disc Disease, Lumbar Spine…	5243	0%	20081014	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	0%	20081014	
Adjustment Disorder	Condition Not Considered a Physical Disability	Adjustment Disorder…	9440	10%	20081015	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Lower Back Pain Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s lower back pain condition began in 2003 after falling from a guard tower.  Radiographic studies showed degenerative disc disease.  There was no surgical indication.  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 Medical Evaluation Board (MEB).  

The MEB NARSUM physical examination on 27 March 2008 June 2008 (4 months prior to separation) noted complaints of non-radiating back pain described as a constant tightness in the lower back.  Treatments with physical therapy (PT), steroid injections and medications had not been effective.  Past treatment noted signs and symptoms of radiating pain, tenderness and left calf sensory exam abnormalities (noted as dysthesias) were not noted as continuing in the present condition or review of systems history portions of the NARSUM.  The physical exam showed tenderness to palpitation and muscle spasm.  The neurologic examination revealed normal strength, sensation, and reflexes in the lower extremities.  There was lumbosacral pain with motion and ROM was “intact grossly.”  During the physical therapy clinic appointment on 20 June 2008 (about a month prior to separation) there was tenderness and guarding with a normal gait and spine contour.  ROM was as charted above, with no additional limitation after three repetitions of motion.  

At the VA Compensation and Pension (C&P) examination on 14 October 2008, performed 3 months after separation, the CI reported usually mild pain in the lower back with stiffness aggravated by bending or lifting.  He reported the use of a back brace when at the gym and no radiating pain.  Exam documented a normal gait, with normal motor, reflex and sensory exams.  There was no tenderness, guarding or pain with motion.  The thoracolumbar ROM after repetition was normal, as recorded in the chart above, with no pain and without additional limitation of motion after repetitive use.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5237 code (lumbosacral strain), citing tenderness, non-deforming spams and pain-limited ROM.  The VA assigned a 0% rating also using the 5237 code based on the VA C&P examination 3 months after separation, citing a non-compensable ROM with X-ray evidence of degenerative disc disease.  The Board agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the physical therapy 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 associated radiculopathy for separate peripheral nerve rating.  Although the CI had experienced radiating pain and episodic abnormal sensations, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  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) condition was not unfitting, and that the adjustment disorder was not a physical disability.  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.  

Obstructive Sleep Apnea Condition.  Routinely obstructive sleep apnea (OSA) is not considered unfitting solely on the basis of field and operational impediments to the use of a breathing device (CPAP).  The OSA condition was profiled (P2) and was not judged to fail retention standards.  It was not implicated in the commander’s statement.  There is no evidence in this case that OSA was associated with any functional impairment that was not corrected by CPAP.  Accordingly, members concurred that the PEB’s fitness determination was reasonable; and, after due deliberation, the Board finds insufficient cause to recommend a change in the PEB adjudication of the obstructive sleep apnea condition.  

Adjustment Disorder Condition.  Adjustment disorder was a condition not constituting a physical disability IAW DoDI 1332.38 in effect at the time of separation.  It is therefore not eligible for disability rating.  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 or compensability determinations for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the lower back pain 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 determination as not unfitting.  In the matter of the contended adjustment disorder condition, the Board unanimously recommends no change from the PEB determination as not compensable.  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 20140226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXX, AR20160005445  (PD201401153)

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:
 						         
Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA