RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01814
BRANCH OF SERVICE:  Army	BOARD DATE:  20141014
SEPARATION DATE:  20080427

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (45K/Armament Repair) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB).  Chronic lower back pain with degenerative disc disease at LS-S1 and obstructive sleep apnea (OSA) with continuous positive airway pressure (CPAP), characterized as falling below retention standards, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions.  The Informal PEB adjudicated the chronic LBP as unfit, rated 0%, with application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting or not compensable, although they may be administratively unfit.  The PEB issued an administrative correction to the initial PEB and affirmed the findings and rating.   The CI made no appeals and was medically separated.

CI CONTENTION:  “ Please consider all conditions.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting chronic LBP; contended not- unfit OSA, dyslipidemia, gastroesophageal reflux disease (GERD) and not compensable adjustment disorder and attention deficit hyperactivity disorder (ADHD) conditions are addressed below.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s contention for ratings of his conditions noted above which were determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.  With respect to the conditions the PEB found not compensable, the Board will review these mental health (MH) conditions and if by preponderance of evidence, a compensable diagnosis or diagnoses can be recommended, per above, the Board must first judge that by preponderance of evidence, this MH condition was most likely incompatible with the specific duty requirements before recommending a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation.

RATING COMPARISON:

Service Admin IPEB – Dated 20080305	VA* - (18 Days Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	0%	Lumbosacral DDD	5242	0%	20080409	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20080409	
Dyslipidemia	Not Unfitting	Nephrolithiasis	7508	0%	20080409	
GERD	Not Unfitting	GERD	7299-7203	0%	20080409	
Adjustment Disorder	Not Compensable	PTSD	9411	10%	20081002	
ADHD	Not Compensable	Attention Deficit Disorder	9499-9400	NSC	20080409	
Other x 0 (not in scope)	Other x 12	20080409	
Combined:  0%	Combined:  60%	
*Derived from VA Rating Decision (VARD) dated 20081222 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Chronic Low Back Condition.  The narrative summary (NARSUM) performed on 20 November 2007, 5 months prior to separation, notes the CI complained of lower back pain since deployment to Iraq in October 2003 after lifting a heavy object of about 200 pounds.  He was medically evaluated and treated with Motrin (non-steroidal anti-inflammatory) and a temporary profile.  He returned from his unit, and finished his deployment.  He then had a second deployment and continued to “tough it out” and did not have any profiles.  When he returned to the US, a magnetic imaging study (MRI) found (L5-S1) degenerative disk disease.  He was referred to a civilian spine specialist and given steroid injections which did not help.  He was not considered a good surgical candidate.  The NARSUM also documented pain described as constant, dull, throbbing and aching.  Pain averaged 8/10 and tingling involving toes and foot that occurred two to three times per month lasting 30 to 40 minutes.  There was also pain in the medial aspect of the left leg.  A hard cough increased his lower back pain.  He could not run, or walk more than two miles, stand more than 60 minutes, sit for more than 20 minutes, lift or carry more than 30 to 50 pounds and was unable to perform sit-ups.  He had no alleviating factors.  The NARSUM physical examination found normal gait and posture with normal heel and toe walk, no tenderness over the lumbosacral spine or paraspinal musculature, no spasm or deformities, and no masses or redness.  Deep tendon reflexes, motor strength and sensation were normal of the lower extremities.  His bilateral straight leg raising test was normal.  Range-of-motion (ROM) was accompanied by complaints of lower back pain are documented in the chart below.

At the VA Compensation and Pension exam performed on 9 April 2008, 18 days prior to separation, the CI reported worsening LBP, 7/10, worse with bending, lifting, stair climbing and sitting or standing for a while.  He reported flare-ups with increased LBP and right leg pain.  There was no response to injections and he denied taking any medications.  There was no bowel or bladder incontinence.  There were no reported injuries, surgeries or hospitalizations.  The CI was employed in construction.  Physical examination found normal posture and gait.  There were no abnormal spinal curvatures, no muscle spasm, normal strength and normal reflexes.  There was decreased sensation to pinprick of the left foot.  ROM was flexion to 90 degrees (normal 90) and extension 25 (normal 30) both ROMs with painful motion.  The right and left lateral flexion were 30 degrees (normal 30) also with pain, while right and left rotation were 30 (normal 30).

The goniometric ROM evaluations in evidence 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)	MEB ~5 Mo. Pre-Sep
(20071120) 	VA C&P ~18 days Pre-Sep
(20080409)	
Flexion (90 Normal)	85	90 (with pain)	
Extension (30)	25	25 (with pain)	
R Lat Flexion (30)	30	30 (with pain)	
L Lat Flexion (30)	30	30 (with pain)	
R Rotation (30)	50 (30)	30	
L Rotation (30)	45 (30)	30	
Combined (240)	230	235	
Comment	Painful motion	Painful motion	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The Board considered VASRD diagnostic codes 5299 (rated analogously to) – 5237 (lumbosacral or cervical strain) used by the PEB for a 0% rating, and code 5242 (degenerative arthritis of the spine) used by the VA, also for a 0% rating.  The Board found evidence of an abnormal MRI and documented evidence of pain with ROM that rated 10% under code 5003 (arthritis, degenerative) criteria.  The Board also considered code 5237 and the VASRD General Rating Formula for Diseases and Injuries of the Spine and found both MEB and VA ROM met the 10% rating criteria by combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees (MEB 230 and VA 235 degrees).  There was no evidence found for a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic LBP condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea with CPAP recommended condition, adjustment disorder with anxiety, ADHD, dyslipidemia and GERD 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.

Obstructive Sleep Apnea with CPAP Recommended.  There was a sleep study performed on 28 November 2007, which found moderate sleep apnea/hypopnea syndrome with effective treatment with CPAP at 11 cm of water.  The OSA with CPAP recommended condition was not profiled or implicated in the commander’s statement.  Although it was judged to fail retention standards, the condition was found by the PEB to be not unfitting as electrical power was available in-theater.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the OSA condition significantly interfered with satisfactory duty performance.  There were no other indications in the record of prolonged absence from work, hospitalization, emergent or urgent medical care for this condition that might otherwise indicate unfitness.  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 so no additional disability rating is recommended.

Mental Health Conditions.  The Board found evidence of posttraumatic stress disorder (PTSD), adjustment disorder with anxiety and ADHD conditions.  A psychiatry consultation performed on 18 October 2007, found the CI screened positive for PTSD on the day of examination after previous testing was negative.  The consultation further documented the CI was inconsistent with use of prescribed psychiatric medications and he had no previous treatment for these psychiatric conditions.  The CI was also diagnosed with ADHD and started treatment for the condition on that day.  Physical examination found mood and affect were mostly irritable, somewhat depressed, cognition was normal, no hallucinations.  The psychiatrist further documented the CI did not fall below retention criteria for the psychiatric diagnoses.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  There were no other indications in the record of prolonged absence from work, psychiatric hospitalizations, emergent or urgent psychiatric care for any psychiatric condition that might otherwise indicate unfitness.  The psychiatric conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards by the Board.  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 any of the psychiatric conditions and so no additional disability ratings are recommended.

Gastroesophageal Reflux Disease and Dyslipidemia.  The GERD and dyslipidemia conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  The conditions were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the GERD or dyslipidemia conditions 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 the GERD, or dyslipidemia contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  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, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the contended obstructive sleep apnea with CPAP recommended condition, adjustment disorder with anxiety, ADHD, dyslipidemia and GERD conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITIONS	VASRD CODE	RATING	
Chronic Low Back Pain Condition	5299-5237	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140425, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150013661 (PD201401814)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		XXXXXXXXXXXXXXX
		Deputy Assistant Secretary of the Army
		    (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA