RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-01290
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20070624

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Information Technology Specialist) medically separated for low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3U2L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Also identified and forwarded by the MEB was a sleep apnea condition, designated as medically unacceptable; and, nine other conditions (carpal tunnel syndrome; possible cubital tunnel syndrome; gastroesophageal reflux disorder; migraine headaches; restless leg syndrome; incidental arachnoid cyst; right knee pain; healing fracture of right small toe and anxiety disorder) designated as medically acceptable for PEB adjudication.  The Informal PEB adjudicated the LBP condition as unfitting, rated 10%.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His LBP and sleep apnea conditions continue to worsen and negatively impact his daily activities. He also lists migraine headaches and PTSD conditions along with IBS. 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 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. 

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:  

IPEB – Dated 20070507	VA* - (~6 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Low Back Pain with Mild Narrowing Of L5/S1 and Early Arthritic Changes of the Thoracic Spine.	5237	10%	20070904	
Sleep Apnea	Not Unfitting 	Sleep Apnea	6847	50%	20070904	
Migraine Headaches	Not Unfitting 	Migraine Headaches	8100	0%	20070904	
Anxiety Disorder	Not Unfitting	Post Traumatic Stress Disorder with Depression and Anxiety	9411	10%	20070904	
Other MEB/PEB Conditions x 7 (Not In Scope)	Other x 2 	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20071212 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP) Condition.  The narrative summary (NARSUM) dated 16 November 2006, seven months before separation, documented the CI’s report that he began to experience LBP in 2006 without antecedent trauma.  He has been treated with physical therapy without much benefit.  Radiographs and magnetic resonance imaging (MRI) of the lumbar spine were unremarkable.  He was prescribed anti-inflammatory medications which helped significantly; however, he has continued to have back pain.  The CI noted his back pain is constant at a level of 4/10, but increases to 8/10 if he has not taken medication. He does not have pain traveling into his legs and there is no leg numbness or weakness.  He does at times notices muscle spasms going up the left side of his spine to the shoulder area.  The CI reported his back pain has affected his ability to carry his ruck for two miles, construct a fighting position, do 3-5 second rushes under fire, or wear body armor.  Physical examination recorded tenderness in the left lumbar area, and range-of-motion (ROM) flexion to 45 degrees (90), and extension to 5 (30) degrees.  The examiner also recorded lateral bending “is approximately 70% of normal.”  The ROM measurements recorded at the physical therapy re-evaluation exam in March 2007 documented thoracolumbar flexion on average of three trials at 76 degrees, and extension at 27 degrees. 

The VA Compensation and Pension (C&P) exam was accomplished 3 months after separation.  On physical examination, the examiner noted tenderness to palpation of the lower lumbar spine, and no muscle spasm.  There was discomfort during ROM testing.  ROM of thoracolumbar spine recorded flexion at 85 degrees with extension of 30 degrees.  DeLuca criteria were not met.  

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition at 10% for pain, coded analogously 5299-5237 (lumbosacral strain) and noted that the range of motion limited was by pain.  The VA granted a 10% rating under the 5237 code based on forward flexion not greater than 85 degrees.  The NARSUM examiner recorded forward flexion to 45 degrees; however, that examination was remote from date of separation and therefore, is less probative.  The examination conducted by physical therapy 3 months before separation documented ROM flexion to 76 degrees, and three months after separation, the VA examiner recorded 85 degrees of flexion.  Board members agreed at the time of separation, the ROM for flexion was between 77 and 85 degrees, therefore, concluded the 20% rating was not sufficiently supported. There were no additional codes to consider.  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 determination for the chronic LBP condition.  

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the anxiety disorder not otherwise specified (NOS), sleep apnea, and migraine headache contended 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.  

Anxiety Disorder (NOS).  The Board first reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military disability evaluation system (DES).  The evidence of the available records showed the diagnosis of anxiety disorder not otherwise specified as the only mental health diagnosis rendered during processing through the DES. The Board determined that no mental health diagnosis was changed in the disability evaluation process, and therefore, this applicant did not appear to meet the inclusion criteria in the Terms of Reference (TOR) of the Mental Health Diagnosis Review Project. The Board next considered whether any mental health condition was unfitting for continued military service, regardless of specific diagnosis.  The memorandum from the Chief, Department of Behavioral Health, dated 14 December 2006, noted the CI had underwent psychiatric evaluation for the MEB on 4 December 2006.  That evaluation noted he had a history of dissociative and anxiety issues manifested by losses of periods of time, and sleep disturbance with mood irritability.  It was noted that the CI initially sought regular mental health care, but he subsequently required minimal interventions over the last 18 months, with no mental health treatment since January 2006 (18 months before separation).  The anxiety disorder NOS condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that any mental health condition significantly interfered with satisfactory duty performance.  

Sleep Apnea.  The NARSUM documented that the CI “has a lifetime history of problems sleeping with excessive snoring and restlessness.”  He was observed to have stopped breathing and was referred for an overnight sleep study.  He was diagnosed with sleep apnea and treated with a continuous positive airway pressure (CPAP) device with reported benefit.  However, his daytime sleepiness had not improved.  His CPAP was readjusted to a higher pressure and the decision was made to monitor his excessive daytime sleepiness.  Although this condition was profiled and implicated in the commander’s statement, there was no performance based evidence from the record that the sleep apnea condition significantly interfered with satisfactory duty performance.  There were no references to the CI falling asleep on the job, or that he had impaired judgment as the result of excessive daytime sleepiness.   The commander’s statement (CS) made no specific reference to this condition as interfering with duty performance; however, indicated that the CPAP machine required a constant power source.  The PEB noted that despite his need for a CPAP machine he was deployable to a mature theater, and therefore, his condition was considered not unfitting.

Migraine Headache.  The CI reported a 6-year history of recurrent headaches.  He was evaluated by neurology while in the MEB process, and noted at the time, he was not taking preventive medications, although he reported headache frequency of twice a week.   The migraine headache condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.   There was no performance based evidence from the record that this condition 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 any of the contended 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 Chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  

In the matter of the contended anxiety disorder NOS, sleep apnea, and migraine headache 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 re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140131, 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 XXXXXXXXXX, AR20160003966   (PD201401290)

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