RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02175
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080807   

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, O4, Signal Officer, medically separated for “degenerative disc disease of the lumbar spine,” with a disability rating of 10%.  

CI CONTENTION:  “I would like to have all MEB/PEB conditions considered for being unfit for duty and rated.”  The CI’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 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 - 20080423	VARD - 20081203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Lumbar Spine	5242	10%	Thoracolumbar Osteoarthritis, Disc Disease ... History of Radiculopathy	5242	10%	20080624	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20080624	
Pre-syncope Syndrome	Not Unfitting	SVT with History of Syncope	7010	0%	20080624	
Herpes	Not Unfitting	Herpes, Onychomycosis of Great Toe	7815	10%	20080624	
Gastroesophageal Reflux 	Not Unfitting	Gastroesophageal Reflux Disease	7346	NSC	20080624	
Bilateral Knee Pain	Not Unfitting	RPPS, Right Knee	5260-5024	10%	20080624	
		RPPS, Left Knee	5260-5024	10%	20080624	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Lumbar Spine.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain began in April 2004 while running, and was aggravated during a deployment to Iraq (June 2006 – August 2007).  Imaging demonstrated degenerative disc disease (L5/S1 with equivocal neural impingement).  Radicular pain was intermittently documented, but there was no documentation of sensory or motor symptoms.  Multiple neurological examinations were normal and surgery was not recommended.  Conservative treatment did not result in improvement sufficient to allow unrestricted duty, and the MEB forwarded “low back pain” to the Physical Evaluation Board (PEB) for adjudication.  There were various STR entries documenting grossly normal range of motion (ROM), normal gait, and normal spinal contour.  At the MEB examination (recorded on DD Form 2808) dated 30 November 2007, 18 months prior to separation, the examiner recorded tenderness without spasm, normal spinal contour, and grossly full ROM.  There were no STR entries documenting significant ROM impairment or other ratable findings, and none documenting periods of incapacitation.  At the NARSUM examination on 10 March 2008, performed 5 months prior to separation, the examiner documented, “The complaint of low back pain does not radiate to his legs and has been stable for 7 months.”  The physical examination recorded a non-antalgic gait, tenderness, the absence of spasm, normal neurological findings (5/5 strength all groups, intact sensation, symmetric reflexes), and ROM as “within normal limits.”

At the VA Compensation and Pension (C&P) examination in June 2008, performed 2 months before separation, the CI reported constant pain rated 4/10 prohibiting running and heavy carrying.  He denied weakness or numbness and periods of incapacitation.  The physical examination reported a normal gait and spinal contour, the absence of tenderness or spasm, and normal neurological findings.  The measured ROM was forward flexion of 90 degrees (normal) with a combined ROM of 240 degrees (normal), specifying painful motion and no loss with repetition.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5242 code (degenerative arthritis of the spine), citing paraspinal tenderness.  The VA conferred the same rating under the same code, citing painful motion.  There was no ROM evidence supporting a rating higher than 10%, no evidence for abnormal gait or contour to support a 20% rating, no evidence of ratable peripheral nerve impairment which would provide for additional rating, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  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 lumbar spine condition.  

Contended Obstructive Sleep Apnea (OSA).  The CI had a chronic (“8-10 years”) history of snoring and daytime somnolence which was first addressed in February 2008 (6 months prior to separation).  A sleep study diagnosed OSA; a continuous positive airway pressure (CPAP) device was dispensed; and, a P3 profile was placed.  A follow-up pulmonary note documented “successful treatment” with CPAP, but a later entry documented, “Notes no change in daytime somnolence.”  The latter entry was contemporary with the NARSUM which documented “still reports the complaint of daytime somnolence” that had remained unchanged on a subjective rating scale (Epworth); and, OSA was judged to fail retention standards.  The CI’s officer evaluations were exemplary and reflected a high level of mental functioning.  The commander’s performance statement documented only the lumbar spine limitations to performance and deployability; and, all of the CI’s officer evaluation reports (OERs) assigned the highest rating, without any indication of cognitive impairment or mention of attention lapses or drowsiness.  At the 2-month pre-separation C&P examination the examiner documented that the CI “has trouble staying awake during the daytime hours ... [but] ... reports that he does not experience any functional impairment from the condition.”

The Board’s main charge is to assess the fairness of the PEB’s determination that OSA 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 PEB’s DA Form 199 decision acknowledged “[OSA] requiring [CPAP] machine to relieve daytime drowsiness” and that it had been determined to fail retention standards.  It was determined to be not unfitting because “[CPAP] is available in most areas of assignment at his rank and MOS ....”  Members agreed that there were no grounds for challenging the PEB’s rationale that the requirement for CPAP was not itself a logistical barrier rendering the CI unfit.  The Board, however, carefully considered whether the residual daytime somnolence elaborated above constituted an unfitting impairment.  It was noted that the PEB’s decision implied that the daytime drowsiness was relieved by CPAP, but that assumption was not supported by the evidence.  Additionally at the C&P examination, the evidence most temporally proximate to separation, the CI himself judged that there was no significant functional impairment from the daytime drowsiness.  Members therefore agreed that, although conceding that the daytime somnolence was not fully controlled, there was insufficient performance based evidence to conclude that this resulted in unfitting impairment.  

Furthermore, it was noted that the CI had suffered these symptoms without treatment for an extended period of service prior to diagnosis, and that his OERs and commander’s performance report documented no impact on performance.  The fitness determination was thus subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral).  This stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  After due deliberation, and 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.  

Other Contended Conditions.  Likewise the Board’s main charge is to assess the fairness of the PEB’s determination that the pre-syncope syndrome, herpes, gastroesophageal reflux disease (GERD) and bilateral knee conditions were not unfitting; this under the same standard and principles as elaborated above for the OSA condition.  These conditions were evaluated by the members, and all of them were stable and not clinically acute at the time of separation.  None were ever profiled in service; none were implicated in the commander’s statement; and, all were judged to meet retention standards.  Members agreed that there was no performance-based evidence indicating that any of the above conditions significantly interfered with duty requirements, and concluded that there was insufficient cause to recommend a change in the PEB fitness determinations for any of them.

BOARD FINDINGS:  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA, pre-syncope syndrome, herpes, GERD and bilateral knee 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.  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 20140513, 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 XXXXXXXXXXXXXXXXXXXX, AR20160007479 (PD201402175)

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