RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01283
BRANCH OF SERVICE:  Army	  SEPARATION DATE:  20080817

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Military Police, medically separated for a chronic mechanical low back pain condition, rated at 20%. 

CI CONTENTION:  The CI asserts he has other service connected disabilities not considered while he was on active duty, specifically cellulitis, sleep apnea and posttraumatic stress disorder; the latter two each rated at 50% by the Department of Veterans Affairs (DVA).  His 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 - 20080508	VARD - 20081204  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain…	5299-5237	20%	Degenerative Disc Disease, Lumbar Spine	5237	10%	20080821	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20080821	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Chronic Mechanical Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic mechanical back pain condition began in June 2005 after falling from a tactical vehicle.  Radiographic studies revealed a small central disk herniation at L5-Sl causing no significant canal stenosis or neural foraminal narrowing.  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 an MEB.

At the time of a neurosurgery consult on 30 August 2007 (1 year prior to separation) the CI reported some radiating pain down the left leg.  Examination showed lumbar spine tenderness and normal lower extremity neurologic findings.  A test of possible nerve root irritation was negative.  The examiner rendered a diagnosis of mechanical low back pain and concluded that referred pain to the lower extremities was not related to nerve root compression.  Range-of-motion (ROM) evaluation by physical therapy (PT) on 4 April 2008 (4 months prior to separation) found thoracolumbar flexion of 45 degrees (normal 90 degrees) and combined ROM of 150 degrees (normal 240 degrees) after 3 repetitions in each plane.  Tenderness, guarding and muscle spasm were absent.

The MEB NARSUM examination on 10 April 2008 noted complaints of baseline pain of 5/10 at rest and exacerbated by walking, prolonged standing, running, or any kind of twisting or lifting movements.  The CI reported exacerbations approximately twice a week which usually lasted a day, and occasionally experienced tingling in the left leg approximately once or twice a week but without numbness or weakness.  The physical examination noted a normal gait and the presence of paravertebral muscle tenderness.  One sign of possible nerve root irritation was present bilaterally, but there was no lower extremity weakness, and sensation was normal.  Electrodiagnostic studies of the left lower extremity on 28 April 2008 were negative for lumbar radiculopathy.

At the VA Compensation and Pension (C&P) examination on 21 August 2008 (4 days after separation) the CI reported chronic low back with stiffness, weakness, and 7/10 pain on a daily basis.  Periods of incapacitation were denied.  Examination showed a normal gait and lower back tenderness.  Thoracolumbar flexion was 70 degrees and combined ROM was 180 degrees.  The ROM was not limited by repetitive use.  Neurologic findings were normal.  The examiner indicated there was no intervertebral disc syndrome.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under an analogous 5237 code (lumbosacral strain), implicating limited forward flexion as the rationale.  The VA assigned a 10% rating using the same code based on the VA C&P examination less than one month after separation, citing limitation of motion.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the PT examination.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes to warrant consideration of rating under that alternative formula.  There was also no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  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 chronic mechanical low back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea (OSA) condition 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 CI was diagnosed with OSA in October 2007 (10 months prior to separation) based on results of a sleep study, and treatment with CPAP was instituted.  A sleep specialist noted in October 2007 and in April 2008 that the condition met retention standards.  The obstructive sleep apnea condition was profiled as a P2, which was acceptable for the CI’s occupational specialty.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that obstructive sleep apnea 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 of the contended obstructive sleep apnea condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the contended obstructive sleep apnea 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, recommend no re-characterization of separation or modification of the disability rating previously assigned.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140311, 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 XXXXXXXXXXXXXXXXXXXXXXX AR20160005883 (PD201401283)

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 POBR
( ) OVA