RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03631
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050202

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Light Wheel Vehicle Mechanic, medically separated for “chronic low back pain secondary to back strain” and “obstructive sleep apnea,” rated 10% and --% (existed prior to service [EPTS] not permanently service aggravated), with a combined   disability rating of 10%.

CI CONTENTION:  “Please consider all conditions.”  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 based upon a 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 - 20041202	VARD - 20050204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Residual of Low Back Strain	5237	20%	STR	
Obstructive Sleep Apnea	6847	--%	Obstructive Sleep Apnea	6847	20%	STR	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain Secondary to Back Strain Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back pain secondary to back strain condition began in May 2004 after heavy lifting.  Radiographic (X-ray) studies on 27 May 2004 were normal.  An MRI on 19 July 2004 was also normal.  Repeat X-ray studies on 26 July 2004 revealed possible spondylolysis of L5 (vertebral defect) on the left but no evidence of spondylolisthesis (vertebrae slipping caused by a fracture).  There was no surgical indication.  The CI was treated with medications, chiropractic treatment, and duty limitations, but his pain persisted.  He declined steroid injections.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “lumbar disc bulge” and “pain, lower back, secondary to number 1, constant moderate” for PEB adjudication.

The range of motion (ROM) examinations 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)	PT ~8 Mo. Pre-Sep	MEB ~3 Mo. Pre-Sep	
Flexion (90 Normal)	WNL	55 (60,55,55)	
Combined (240)		---	
Comments	Normal appearing spine with full ROM; Abnormal gait and stance	Normal appearing lumbo spine with pain on motion; Radiating pain tests negative 	
§4.71a Rating	10%	20%	

The MEB NARSUM examination dated 1 November 2004, 3 months prior to separation, noted complaints of low back pain.  The pain was aggravated by activity and relieved with rest.  The CI reported the pain radiated up the thoracic region, anterior thigh numbness, and weakness.  The pain was rated 7/10.  Physical examination showed tenderness over the thoracolumbar muscles with painful and limited motion (see chart above).  There was normal spinal contour.  Straight leg raise testing (for radiating symptoms) was negative.  The neurological examination was not recorded, but had been normal on the DD Form 2808 Report of Medical Examination 2 weeks earlier on 13 October 2004.  A VA compensation and pension (C&P) examination was not requested and the VA used the STRs for the rating.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain secondary to back strain condition 10% coded 5237 (lumbosacral strain), citing painful limitation of motion and tenderness.  The VA rated the chronic low back pain secondary to back strain condition 20% also coded 5237 (lumbosacral strain), citing limitation of forward flexion.  The single set of goniometric measurements was performed by physical medicine proximate to separation.  It supports a 20% rating.  The Board found no evidence to support the presence of an unfitting radiculopathy at separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic low back pain secondary to back strain condition, coded 5237.

Obstructive Sleep Apnea Condition.  The CI entered active duty on 11 March 2003 and was evaluated on 25 April 2003, while still in basic training, for complaints of trouble sleeping and witnessed episodes of sleep walking.  A sleep study was performed on 6 May 2003 and confirmed the diagnosis of moderate obstructive sleep apnea (OSA) and treatment was recommended.  As the CI was due to graduate from basic training in 6 days, follow up was deferred to his next duty station.  The CI was did not follow-up for a year until he was evaluated at a sleep lab clinic on 19 July 2004.  At that time he was prescribed nightly CPAP (continuous positive airway pressure).  In follow-up on 16 August 2004, the examiner noted resolution of the sleep-disordered breathing condition by the use of the CPAP machine.  The permanent profile 8 October 2004 directed the CI required access to an electrical outlet on a nightly basis for use of the CPAP machine.  OSA is a condition which requires MEB evaluation, but, if controlled, is commonly found fitting by all service branches.  The MEB NARSUM pulmonary addendum on 5 November 2004, 3 months prior to separation, noted that the symptoms of OSA were completely relieved by the use of the CPAP machine and that these had been present for 3-4 years (predating accession by over a year).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA condition --% coded 6847 stating the condition existed prior to service (EPTS) and was not permanently service aggravated.  The VA rated the OSA condition 20% coded 6847 citing the condition was EPTS but was aggravated by military service (rated at 50% with a 30% deduction).  While the PEB did not specifically cite the OSA condition as unfitting, this is suggested by the fact that it was given a rating (---%) and assigned a VA code.  Neither is typically done for a “not unfitting” condition.  The Board considered the evidence.  It is clear that the CI reported a history of breathing problems which predated accession and he was evaluated for these while still in basic training.  The PEB and VA both determined that the OSA was an EPTS condition.  The Board then considered if there was permanent service aggravation.  Review of the records does not show that his symptoms increased.  The Board did not find evidence that the OSA condition impaired duty even prior to treatment.  It was not profiled until the CI was in the MEB process and the Commander made no comment on it.  Moreover, the CI reported that his symptoms were eliminated with treatment.  He did report some insomnia, but it appeared to be related to the back pain and medications as well as job stress.  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 adjudication for the OSA condition.  

BOARD FINDINGS:  In the matter of the chronic low back pain secondary to back strain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended obstructive sleep apnea condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration. 

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain Secondary to Back Strain	5237	20%	
Obstructive Sleep Apnea	6847	--% (EPTS)	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140728, 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 
XXXXXXXXXXXXXXXXXX, AR20160017556 (PD201403631)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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.

CF: 
(  ) DoD PDBR
(  ) DVA