RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04051
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040514

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E4, Heavy Wheel Vehicle Mechanic, medically separated for “low back pain (LBP)” and “obstructive sleep apnea (OSA)”; rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  The applicant contends his low back pain and obstructive sleep apnea 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 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 – 20040315	VARD – 20041028	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	5237	10%	Degenerative Disease, Low Back Pain	5237	20%	20040714	
			Scar, L5-S1 Discectomy	7805	0%	20040714	
Obstructive Sleep Apnea…	6847	0%	Sleep Apnea	6847	50%	20040714	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in July 1999 after working on vehicles in the motor pool.  Magnetic resonance imaging (MRI) studies in July 1999 showed herniated intervertebral discs at L5-S1.  At the time of the primary care clinic appointment in July 1999, the CI reported a pinch in his lower back with his legs giving out later in the day.  On examination the CI had full range of motion (ROM) as indicated in the chart below, normal gait, and normal lower extremity (LE) strength, sensation, and reflexes.  He filed a VA claim for his back condition which was denied in March 2000 citing there was no evidence to support a well-grounded claim for his back condition.  He was mobilized in February 2003 and in late June 2003 injured his back while lifting tires.  Lumbar spine MRI studies performed on 14 July 2003 showed bulging discs at L5-S1 with impingement on the left L4-5 level.  The CI received epidural injections of his lower back 3 October 2003 and 20 November 2003.  Electro-diagnostic studies (EMG/NCV), 12 December 2003, were negative for radiculopathy.  Despite treatment (including medications, physical therapy (PT), nerve root blocks, facet joint injections and epidural steroid injection), the low 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 spine, low back pain with right lower extremity radicular pain” for PEB adjudication.

The MEB NARSUM examination on 9 January 2004 (4 months prior to separation) noted complaints of severe LBP, rated 8/10 scale at its worst, that radiated to the lower extremities.  Pain radiated to the right LE.  The CI was involved in ongoing PT.  Physical examination showed tenderness to the L4-L5 on the right.  The CI had normal gait and spinal contour, without muscle spasm.  Lower extremity strength and reflexes were normal and examination maneuvers for radicular signs were negative.  The examiner noted the CI had “pretty good flexion-extension” and referenced the PT ROM measured for the MEB which was thoracic ROM of flexion and lumbar ROM of flexion 25, 25, and 20.  The examiner used an inclinometer versus a goniometer (required by VA) for thoracolumbar forward flexion and reported separate values for thoracic flexion of 55, 60, and 55 degrees and lumbar spine flexion of 25, 25, and 20 degrees.

A PT evaluation 20 February 2004 noted that the CI reported worsened LBP with radiation to both LEs.  A repeat MRI performed on 22 March 2004 showed a large left disc herniation at L5-S1 with impingement of the nerve root.  A primary care (PC) note in the STR dated 22 March 2004 indicated that the CI’s PEB was already completed and recommended that the CI follow-up with the VA for surgical consideration.  The CI’s pre-operative visit with the VA neurosurgeon noted that the CI was on active duty.  The CI underwent back surgery with discectomy of L5-S1 in 2 April 2004, 1 month before separation, for a herniated disc.  Following surgery the CI was doing well.  However, he experienced an exacerbation of his LBP radiating down both LEs during a PT session in approximately early June 2004, less than 1 month after separation.  MRI studies 15 June 2004 showed narrowing of the disc space at L5-S1 with no new disc bulging, but with scarring at the surgical level.  Electro-diagnostic studies of the LEs performed on 2 July 2004 were normal.  

At the VA Compensation and Pension (C&P) examination on 14 July 2004, performed 2 months after separation, the CI reported constant LBP and radiation to the leg and was using a cane at all times.  He reported pain was aggravated by walking a few blocks and caused weakness to his lower extremities including down to his right ankle.  The pain was relieved by “lying down in a certain position.”  He denied numbness.  Physical examination noted a stiff posture and an antalgic gait, with a limp favoring the right side.  There was tenderness to palpation over a well-healed surgical scar.  Straight leg raise testing to elicit radiculopathy was positive bilaterally and lower extremity strength was graded 5/5.  Thoracolumbar (TL) ROM after repetition was limited by pain was flexion of 30 degrees and combined ROM of 180 degrees recorded in the chart.  

Outpatient VA treatment notes indicated the CI continued to report LBP with radiation to the LEs, but denied numbness, tingling or other neurological symptoms.  Another MRI was performed on 14 October 2004 and was unchanged from the previous MRI.  A neurosurgery evaluation on 8 November 2004 noted recurrent LBP with some radiation to the left leg.  The examination showed normal strength, sensation, and reflexes of both LEs.  A diskogram was performed in January 2005 and reproduced the CI’s pain and he underwent a second spinal surgery for L5-S1 fusion 24 May 2005 at the VA, 12 months after separation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10% coded 5237 (lumbosacral strain), citing painful motion.  The VA rated the LBP condition 20% coded 5237 (lumbosacral strain), based on the VA C&P examination 2 months after separation, citing pain on motion.  However, in a subsequent VA Hearing Officer Decision, the VA noted the 20% rating was “clearly an error” and assigned a 40% rating for TL forward flexion to only 30 degrees due to pain, effective the day after the date separation.  

The Board noted that this case was unusual in that the CI underwent his PEB prior to his back condition worsening and undergoing back surgery in April 2004, while still on active duty.  Additionally, after separation the record documents that within a few weeks after surgery the CI experienced an exacerbation of his back condition.  The C&P examination occurred 2 months after separation and after exacerbation of the back condition.  The Board noted the C&P examination was the only examination in record that recorded goniometric ROM following the CI’s initial surgical intervention and it was also close to the date of separation.  The Board judged the MEB and PT ROM evaluations prior to the surgery provided no probative value for its rating recommendation at the time of separation.  At the C&P examination flexion of 30 degrees was documented with an antalgic gait and tenderness.  The flexion ROM was noted to be limited by pain and no muscle spasm noted.  The Board deliberated if the disability picture at the time of separation was more closely approximated by the 20% rating or the 40% rating, which is supported by the C&P examination finding of TL forward flexion “not greater than 30 degrees.”  After deliberations, Member consensus was that the disability picture at the time of separation was more closely approximated by the 40% rating.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring bed rest prescribed by a physician documented to warrant consideration of rating under the alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back pain condition, coded 5243.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The C&P examination and neurosurgical evaluations in close proximity to the C&P examination noted normal strength, sensation and reflexes of the lower extremities and electro-diagnostic studies did not show evidence of lumbar radiculopathy.  While the CI reported radiating pain to the LEs, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that a motor or sensory deficit existed to any degree that was functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back pain condition, coded 5243.  

Obstructive Sleep Apnea (OSA).  OSA was first suspected in September 2003 when the CI reported difficulty sleeping with ongoing daytime somnolence and non-restorative sleep.  A sleep study 13 November 2003 detected “moderately severe” OSA, and a CPAP [continuous positive airway pressure] titration study in 12 December 2003 documented the effectiveness of CPAP.  Despite treatment, the OSA 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 “moderate sleep apnea” for PEB adjudication.  

At the NARSUM examination 9 January 2004, the CI reported that he was doing much better without any episodes of apnea and no snoring.  The cardiovascular (CV) examination was normal.  
The VA C&P evaluation on 14 July 2004, 2 months after separation, noted the use and requirement of a CPAP machine.  The CV examination was normal

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA condition 0%, coded 6847.  The VA assigned a 50% rating, citing the requirement for CPAP.  IAW DoDI 6040.44, the Board’s recommendation must be derived from the VASRD and VASRD §4.97 mandates a minimum rating of 50% for OSA requiring a breathing assistance device; and, the evidence establishes that the latter criterion was met in this case.  
There was no evidence of cardiac or pulmonary complications to support the 100% rating.  In consideration of these facts, the Board unanimously recommends a service disability rating of 50% for the OSA condition, coded 6847 for OSA with required use of a CPAP machine.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the OSA condition, coded 6847.  

BOARD FINDINGS:  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  In the matter of the obstructive sleep apnea condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain 	5243	40%	
Obstructive Sleep Apnea	6847	50%	
COMBINED	70%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated, 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 AR20160011356 (PD201404051)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 70% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 70% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA