RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00424
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071020

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Military Police, medically separated for “low back pain,” with a disability rating of 10%.

CI CONTENTION:  The CI requests the Board 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 – 20070801	VARD -  20071022	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	10%	DDD Lumbosacral Spine With Radicular Symptoms	5243	10%	20070907	
Upper Airway Resistance/OSA	Not Unfitting 	Obstructive Sleep Apnea	6847	50%	20070907	
Right Knee Pain	Not Unfitting	Right Patellofemoral Syndrome	5299-5261	0%	20070907	
Headache Syndrome	Not Unfitting	Migraine Headaches	8100	0%	20070907	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in March 2004 after moving furniture.  He was treated with medications and physical therapy (PT).  The next record in evidence is a family practice note dated 19 April 2006 in which the CI reported ongoing LBP.  He had pain-free and full range of motion (ROM) on examination with a normal gait and neurological examination.  Tenderness and spasm were present.  X-rays were normal.  
The CI was referred for PT and chiropractic treatment.  Magnetic resonance imaging (MRI) studies on 22 June 2006 showed degenerative disc disease (DDD) at L5-S1 with no evidence of significant foraminal or canal stenosis (no neural impingement).  Loss of lordotic curvature consistent with muscle spasms was noted.  In physical medicine on 3 August 2006, the ROM was normal as were the motor and reflex examinations.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “lumbar disc disease” for PEB adjudication.  Thoracolumbar ROM measurements, performed by PT on 16 October 2006, 12 months prior to separation, showed flexion of 55 degrees (normal 90) and a combined of ROM 190 degrees (normal 240) after repetition.  Motion was limited by pain.  An inclinometer and goniometer were used to assess ROM.  The gait and posture were normal.  No indication of why flexion was reduced was documented.  Tenderness was present but spasm was not documented.  It was noted that the passive ROM measurements were unreliable.  

At the MEB examination on 20 October 2006, 12 months prior to separation, the CI reported back pain.  The physical examination showed positive straight leg raise on the right and decreased strength in the right lower extremity.  The MEB NARSUM examination was performed on 12 April 2007, 6 months prior to separation.  The CI reported no significant relief from conservative treatment which included nonsteroidal anti-inflammatories, muscle relaxants, physical therapy, chiropractic treatment and trigger point injections.  The examination showed tenderness to palpation, no muscle spasms and a negative straight leg raise test.  Motor strength, reflexes and sensation were normal.  Electro-diagnostic testing completed in August 2006 was reported to be normal.  The PT ROM (above) was cited.  At the VA Compensation and Pension (C&P) evaluation performed on 7 September 2007, 1 month before separation, the CI reported LBP extending into the right leg down to the foot which was described as numbness.  The CI reported no lost time from work in the past 12 months.  The physical examination showed a normal posture and gait.  The motor, reflex, and sensory examinations were normal.  Provocative testing for nerve root irritation was negative.  There was palpable tenderness in the right sciatic notch.  On ROM measurements, flexion was 90 degrees (normal 90) and the combined ROM was 225 degrees (normal 240) with pain.  There was no additional limitation with repetitive motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition without abnormal neurologic findings 10%, coded 5299-5237 (lumbar spine strain), citing localized tenderness and combined range of motion of 201 degrees limited by pain.  The VA rated the back condition 10% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 1 month before separation, citing a limitation and painful motion as well as tenderness.  The Board noted that the limitation of thoracolumbar motion recorded on the MEB PT examination met the threshold for a 20% rating.  However this examination’s probative value was judged to be compromised by its remoteness (12 months) from the date of separation, the fact that the passive ROM measurements were unreliable, and measurements were accomplished using an inclinometer and goniometer.  It is also an outlier from the other ROM measurements which were typically normal or near normal.  The Board agreed that a 10% rating was supported.  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 back condition.  

Contended PEB Conditions:  Upper Airway Resistance/Obstructive Sleep Apnea, Right Knee Pain, and Headache Syndrome.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  

Upper Airway Resistance/Obstructive Sleep Apnea (OSA):  The CI had a long history of OSA.  The CI was diagnosed with mild obstructive sleep apnea in July 2001 and prescribed nasal CPAP (continuous positive airway pressure).  The NCO evaluation report covering April 2005 through January 2006 said promotion potential was “among the best” and overall performance and potential was “successful” and “superior.”  Promotion was recommended.  Earlier evaluation reports were similar.  The commander’s statement did not specifically implicate OSA.  A second sleep study was performed on 13 June 2007 which concluded “no evidence of significant obstructive sleep apnea and sleep disordered breathing in the study.”  The MEB determined this condition was medically unacceptable and the CI was profiled with a P3.  The profile requirements included access to electricity every night and should not drive a government vehicle if excessively tired. The CI was prohibited from 24 hour duty.  However, there was no performance based evidence from the record that OSA significantly interfered with satisfactory duty performance at separation.  Rather, the evidence is that the CI did perform his duties adequately on treatment.  The PEB concluded this was a long standing condition and was appropriately managed with CPAP.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended OSA condition and so no additional disability rating is recommended.  

Right Knee Pain:  The MEB determined the right knee was medically acceptable and was profiled as a P2.  The CI passed his physical fitness test in November 2005.  At the VA C&P examination 1 month prior to separation, the CI reported his right knee had no effect on his occupation or his activities of daily living.  ROM was normal (0-140 degrees) with no pain.  There was no performance based evidence from the record that the right knee condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended right knee condition and so no additional disability rating is recommended.  

Headache Syndrome:  The MEB determined the headache syndrome was medically acceptable and was not profiled.  At the Neurology appointment on 11 October 2006, the CI reported he took Midrin for his headaches which relieved the pain.  The Neurology appointment on 1 December 2006 determined the headaches were medically acceptable.  There was no performance based evidence from the record that the headache condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended headache condition and so no additional disability rating is recommended.  

After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA, right knee and headache 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 20150602, with attachments
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

07 Feb 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXX, AR20160019844 (PD201500424)

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