RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01611
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20060915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Fire Support Specialist, medically separated for “chronic neck pain” and “chronic low back pain,” both rated 10%, with a combined disability rating of 20%.

CI CONTENTION:  “Review all conditions.”  The complete submissions are at Exhibits A and B.

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20060731	VARD - 20070905	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5237	10%	Degenerative Arthritis of Cervical Spine	5242	10%	20061218	
Chronic Low Back Pain	5237	10%	Lumbar Strain	5237	10%	20061218	
Bilateral Shoulder Pain	Not Unfitting	Right Shoulder Strain	5201-5024	10%	20061218	
		Left Shoulder Strain	5201-5024	10%	20061218	
Bilateral Knee Pain	Not Unfitting	Right Knee Strain	5260	10%	20061218	
		Left Knee Strain	5260	10%	20061218	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20061218	
Bilateral Elbow Pain	Not Unfitting	Bilateral Elbow Pain	5299-5204	NSC	20061218	
Tinnitus	Not Unfitting	Bilateral Tinnitus	6260	10%	20070507	
Chronic Urticaria	Not Unfitting	No VA Placement	
Chronic Sinusitis	Not Unfitting	No VA Placement	
Hypertension	Not Unfitting	Hypertension	7101	0%	20061218	
Polysubstance Abuse	Not Unfitting	No VA Placement	
Depressive Disorder	Not Unfitting	Post-Traumatic Stress Disorder	9411	50%	20070822	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) the CI’s neck condition was exacerbated in May 2004 after a motor vehicle collision caused by an IED blast.  Radiographic studies revealed loss of cervical lordosis; degenerative changes at C5-C7 and disk protrusions at C5-6 and C6-7 with impingement on the exiting nerve roots.  Electro-diagnostic studies performed in May 2005 were negative for radiculopathy.  The 17 June 2005 evaluation by neurosurgery indicated the CI was not a surgical candidate.  

A physical therapy (PT) range of motion (ROM) study performed on 28 March 2006, 6 months prior to separation, revealed cervical flexion of 35 degrees (normal 45) and a total combined ROM of 215 degrees (normal 340).  All planes of cervical ROM were limited by pain.  At the 31 March 2006 neurosurgery consult, the examiner recorded no motor disturbances, but the CI complained of a burning sensation in the left upper extremity and numbness in the left lower extremity.  Provocative testing to elicit nerve root pain was positive.  On examination, there was normal motor strength and reflexes in the upper extremities.  

During the 3 April 2006 Medical Evaluation Board (MEB) examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported neck pain with numbness in his left arm.  His physical examination (PE) revealed tenderness in the lower half of the cervical spine.  There was no evidence of cervical spasms.  Reflexes were normal, but sensation was decreased in the left upper extremity.  A repeat electro-diagnostic study on 12 April 2006 continued to show no evidence of a cervical radiculopathy.  

At the 18 December 2006 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported constant 8/10 neck pain with stiffness, limited ROM and weakness.  The pain traveled from his neck to his right arm, but did not cause incapacitation.  His PE did not reveal any evidence of muscle spasms, tenderness, ankylosis, or radiating pain of the cervical spine.  ROM testing revealed forward flexion of 45 degrees and total combined cervical ROM of 305.  There was pain in all planes of movement, but no additional limitation due to fatigue, weakness, lack of endurance or incoordination after repetitive use.  Upper extremity motor strength, reflexes and sensation were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition at 10%, coded 5237 (cervical spine strain), citing painful limitation of motion with muscle tenderness.  The VA also rated the neck condition at 10% coded 5242 (degenerative arthritis of the spine), based upon the C&P examination 3 months after separation, citing forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees.  The panel agreed that a 10% rating, but no higher, was justified for multi-directional painful motion of the cervical spine as reported on the VA examination 3 months post separation.  There was no muscle spasm or guarding, thus the next higher 20% rating was not justified.  There was no documentation of intervertebral disc syndrome (IVDS) with 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 panel concluded there was insufficient cause to recommend a change in the PEB’s adjudication for the neck condition.

Chronic Low Back Pain.  According to the STR, the CI’s back condition was exacerbated in May 2004 secondary to the same accident as noted above for the cervical spine condition.  Radiographic studies revealed “minimal bilateral facet hypertrophic changes at L4-5.”  The 15 August 2005 PT ROM study noted that the CI had full thoracolumbar ROM without pain.  

At the primary care clinic visit on 15 February 2006, 7 months prior to separation, the CI complained of “aggravation of back pain which had previously calmed down.”  On PE, the examiner documented lumbar muscular tenderness.  Motor strength, reflexes and sensation were normal.  Provocative testing to detect disc herniation was negative.  

At the 31 March 2006 MEB neurosurgery consult, 6 months prior to separation, the examiner recorded that the CI denied motor disturbances, fecal incontinence, or urinary loss of control, but endorsed numbness in his left thigh, shin, calf and foot.  On examination, the CI was noted to have a normal gait and motor strength, but provocative testing to detect radicular signs was positive on the left side.  Distal sensation was abnormal noting a subjective decrease to soft touch throughout the left lower extremity with the exception of the foot.  Reflexes were normal with the exception of the plantar reflex, which was absent.  

At the 3 April 2006 MEB examination the CI reported back pain with numbness in legs.  His PE revealed lumbar tenderness without spasm.  Motor strength and reflexes were normal in the lower extremities, although sensation was decreased in the left leg.  The CI reported pain with examination maneuvers which would not be expected to elicit pain, based on the known spinal pathology.  ROM for the entire spine was assessed and noted as “full active ROM.”  X-ray studies of the lumbar spine on 7 April 2006 noted normal spinal vertebra and discs without degenerative changes.  

At the C&P evaluation the CI reported 8/10 constant burning, aching, and sharp back pain that traveled to his legs.  The pain was elicited by physical activity.  The CI stated that his back condition did not cause incapacitation.  His PE revealed no evidence of radiating pain upon movement.  There was no spasms or tenderness about the lower spine.  The CI’s gait and posture were normal and there was no abnormal spinal contour or signs of IVDS.  ROM testing measured forward flexion of 80 degrees (normal 90) with pain, and total combined thoracolumbar ROM of 230 degrees (normal 240) with pain.  Lower extremity motor strength, reflexes and sensation were normal. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5237 (lumbosacral strain), citing paraspinal tenderness without spasm or radiculopathy.  The VA also rated the back condition at 10%, coded 5237, based upon the C&P examination 3 months after separation, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  Panel members agreed that a 10% impairment was supported for limitation of flexion greater than 60 degrees, but not greater than 85 degrees.  There was no additional evidence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of IVDS with 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 panel concluded there was insufficient cause to recommend a change in the PEB’s adjudication for the back condition.  
  
Contended PEB Condition:  Obstructive Sleep Apnea (OSA).  The panel’s main charge is to assess the fairness of the PEB’s determination that the OSA was not unfitting.  The OSA was profiled, implicated by the commander and noted by the MEB to fail retention standards.  The MEB narrative summary (NARSUM) indicated that the OSA had been treated with CPAP prior to the CI’s deployment to Iraq, but the CI was unable to tolerate the mask and did not take it with him.  He was able to complete his year-long deployment and reported that he was doubtful that his sleep apnea worsened during his deployment, but definitely, it did not improve.  In both the MEB consultation as well as the otolaryngology clinical encounter in mid and late 2005, OSA was clearly identified as the condition for which the CI was referred into the Disability Evaluation System in the first place.  After due deliberation, the panel majority agreed that it was unfitting and therefore ratable.  VASRD §4.97 provides for 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 chronic respiratory failure with carbon dioxide retention, cor pulmonale, or the requirement for a tracheostomy to support the next higher 100% rating.  In consideration of these facts, the panel unanimously recommends a disability rating of 50% for the OSA, coded 6847.  

Contended PEB Conditions:  Tinnitus, Urticaria, Sinusitis, Hypertension, Polysubstance Abuse, and Depressive Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  The panel also noted that, IAW DoDI 1332.38, attachment 5, polysubstance abuse is a condition not constituting a physical disability.  After due deliberation, the panel 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.  

Contended PEB Conditions:  Bilateral Shoulder Pain, Bilateral Knee Pain and Bilateral Elbow Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that the bilateral shoulders, bilateral elbows and bilateral knees were not unfitting.  All of these conditions were profiled and noted by the MEB to fail retention standards, but none were implicated by the commander as affecting duty performance.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB’s fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the neck condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the OSA and IAW VASRD §4.97, the panel majority recommends a rating of 50% coded 6847 (OSA).  The single voter for dissent recommends no change and elected not to submit a minority opinion.  In the matter of the contended bilateral shoulder pain, bilateral knee pain, bilateral elbow pain, tinnitus, urticaria, sinusitis, hypertension, polysubstance abuse and depressive disorder, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  

The panel, therefore, 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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5237	10%	
Chronic Low Back Pain	5237	10%	
Obstructive Sleep Apnea	6847	50%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  DD Form 294, dated 20170512, w/atchs
Exhibit C.  Service Treatment Record
Exhibit D.  Department of Veterans Affairs Treatment Record 

AR20180002558, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 60% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure