RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02601
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050922

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve (AGR) E-6 (Health Care Specialist) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3/U2/L3 profile and referred for a Medical Evaluation Board (MEB).  “Low back pain secondary to herniated L4-L5 and L5-S1 disks with spinal stenosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded five other conditions (gastroesophageal reflux disease, obstructive sleep apnea, allergic rhinitis, leg length discrepancy, and moderate left acromioclavicular degenerative joint disease).  The Informal PEB adjudicated his back pain as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals.  He was released from active duty due to medical disability and transferred to the Retired Reserve List awaiting retirement pay at age 60, pursuant to his request. 

CI’s CONTENTION:  He was not evaluated for obstructive sleep apnea, leg length discrepancy, left acromioclavicular degenerative joint disease or numerous other conditions (heart PVC’s, asthma, knee condition, flat feet worsening, numbness of big toe L leg while running or standing, others, neck, carpal tunnel, tennis elbow, PTSD and Depression/Stress).  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 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:  

IPEB – Dated 20050804	VA* - (~8 Months Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	10%	Lumbosacral Strain	5237	20%	20060515	
Severe Obstructive Sleep Apnea	Not Unfitting	Severe Obstructive Sleep Apnea	6847	50%	STR	
Left Leg Length Discrepancy	Not Unfitting	Left Leg Shortening	5275	-	STR	
Moderate Left Acromioclavicular Degenerative Joint Disease	Not Unfitting
	Left Shoulder Acromioclavicular Degenerative Joint Disease	5010-5201	0%	STR	
Other MEB/PEB Conditions x 2 (Not In Scope)	Other x 20	
RATING:  10%	COMBINED RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20060907 (most proximate to date of separation [DOS]) 

ANALYSIS SUMMARY:  

Low back pain (LBP).  The CI has had a long history of LBP.  In 1982, he experienced LBP after doing flutter kicks.  In November 2004, he had LBP after a period of prolonged sitting.  Magnetic resonance imaging (MRI) in March 2005 revealed disc herniation at L4-L5 and L5-S1, with associated narrowing and dessication.  The CI was treated with medications, physical therapy (PT), and other conservative therapeutic measures.  In spite of all treatment efforts, his LBP persisted and an MEB was initiated.  The MEB physical examination (PE) was in June 2005.  The CI reported that he had daily discomfort that interfered with job performance.  The LBP was described as a dull pain in his lower lumbar spine.  The pain was worse with heavy lifting, prolonged standing or prolonged walking.  On PE, there was mild tenderness to palpation (TTP) of the lumbosacral paraspinous muscles.  Range-of-motion (ROM) of the lumbar spine was full in six planes.  He was able to toe walk and heel walk.  He walked with a very mild antalgic gait, with good balance.  Neurological exam (sensory and motor) was normal.

The CI was separated on 22 September 2005.  Eight months later, in May 2006, he had a VA Internal Medicine Evaluation.  He reported that he continued to have LBP, and the pain radiated to his lower extremities (LEs).  He described the pain as “crushing, aching, squeezing, oppressing, and sharp.”  He denied any paresthesias.  On PE, the CI was in no apparent distress.  Posture and gait were normal and he required no assistive aids for ambulation.  PE of the thoracolumbar spine revealed mild paraspinal muscle spasm, but no tenderness or weakness.  There was no evidence of radiation of pain and no evidence of intervertebral disc syndrome (IVDS).  ROM was measured with a goniometer and is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~3 mos. Pre-Sep	VA C&P ~8 mos. Post-Sep	
Flexion (90 Normal)	Full	60	
Extension (30)	Full	25	
R Lat Flexion (30)	Full	25	
L Lat Flexion (30)	Full	25	
R Rotation (30)	Full	30	
L Rotation (30)	Full	30	
Combined (240)	Full	195	
Comment	“Full in 6 planes”	Pain with motion	

The Board directed attention to its rating recommendation based on the evidence.  The June 2005 MEB exam was just 3 months before the date of separation (DOS) and therefore had significant probative value.  The May 2006 C&P exam was 8 months after the DOS and therefore had less probative value.  At the June 2005 MEB exam, there was mild TTP and the thoracolumbar ROM was “full in 6 planes.”  The Board determined that IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 10% disability rating was appropriate.  The Board tried to find a path to a higher rating.  There was not sufficient evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The Board considered using other diagnostic codes, but the other VASRD codes that were considered did not result in a higher rating.  The record did not show sufficient evidence of a seriously disabling back condition or spinal abnormality which would justify a higher rating.  

The Board also considered the matter of radiculopathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties.  At the June 2005 MEB exam, the neurological exam (sensory and motor) was normal.  There were no objective neurologic abnormalities.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  IAW the VASRD §4.71a, “… with or without symptoms such as pain whether or not it radiates, stiffness or aching…” is subsumed under the spinal rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the unfitting LBP condition.

Other contended PEB conditions within the “Scope of Review”as defined above:  In October 2001, the CI had a polysomnogram study and was diagnosed with obstructive sleep apnea (OSA).  He responded very well to treatment with continuous positive airway pressure (CPAP).  In May 2005, he was seen in the Pulmonary Clinic.  He denied significant daytime somnolence since starting the CPAP.  He denied cataplexy, restless legs, paralysis, headaches or hallucinations.  There was no shortness of breath, dyspnea on exertion, wheezing, cough or hemoptysis (coughing up blood).  On PE of the chest, the lungs were clear to auscultation.  Chest X-ray was unremarkable.  Pulmonary function tests (PFTs) were normal, and methacholine challenge test (MCT) was negative.  The examining physician’s diagnostic impression was: “Sleep apnea, CPAP dependent.”  In August 2005, the Army PEB adjudicated the OSA condition as not unfitting and therefore not ratable.  

This CI has had a long history of left shoulder pain.  In 1987, his left shoulder was injured when he was “yanked” out of a swimming pool by the left arm.  X-ray of the left shoulder in March 2005 revealed moderate degenerative changes in the acromioclavicular (AC) joint.  ROM testing showed full active range-of-motion, but there was pain with flexion and abduction.  The Physical Profile (DA Form 3349) from July 2005 listed his left shoulder pain as U-2.  The MEB judged the left shoulder condition to meet retention standards.  The Army PEB adjudicated the left shoulder condition as not unfitting and therefore not ratable.  The PEB adjudicated the leg length discrepancy as not unfitting and therefore not ratable.  

The Board’s main charge with respect to these three conditions (OSA, left shoulder pain and leg length discrepancy) is to assess the appropriateness of the PEB’s fitness adjudication.  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.  These three conditions were thoroughly reviewed and considered by the Board.  There was no indication from the record that any of these conditions significantly interfered with satisfactory performance of military duties.  After due deliberation, and consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for any of these conditions (OSA, left shoulder pain, and leg length discrepancy).  Therefore, no additional disability rating is 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA, left shoulder condition, and leg length discrepancy 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.  

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 20131113, 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, AR20150018232 (PD201402601)

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