RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01648
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Telecommunications Operator/Maintainer, medically separated for “chronic neck pain,” “chronic subjective low back pain” and “obstructive sleep apnea” rated 10%, 10% and 0%, respectively, with a combined disability rating of 20%.   

CI CONTENTION:  “Health has worsened.”  The CI’s complete submission is Exhibit A.  

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 - 20041028	VARD - 20050526	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5299-5237	10%	Neck Pain, Stenosis at C4-C5	5237	10%	20050406	
Chronic Subjective Low Back Pain		10%	Lumbar Disc Bulge at L3 to L4	5299-5243	0%		
Obstructive Sleep Apnea (OSA)	6847	0%	Sleep Apnea	6847	50%	20050414	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Neck Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began sometime in 2002 after sustaining an injury while in the field.  Radiological studies were negative.  During the 31 March 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI reported constant neck pain.  The physical examination showed no swelling, but there was mild tenderness.  The CI had full active range of motion (ROM).  The 26 August 2004 physical therapy ROM study showed flexion of 45 degrees (normal) and combined ROM of 225 degrees (normal 340).  The 30 August 2004 MEB NARSUM addendum, 4 months prior to separation, noted complaints of persistent numbness and tingling of the left arm.  MRI studies showed some straightening of the cervical spine possibly related to cervical neck spasms, but no fractured or herniated discs.  Electrodiagnostic studies in October 2004, showed no evidence of left cervical radiculopathy.  

At the 6 April 2005 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported the numbness and tingling in his neck stopped after he stopped wearing his helmet.  He reported aching on a daily basis rated 4/10 by the end of the day.  He reported flare-ups in his neck 1-2 times per week lasting 2-3 hours.  The physical examination showed full ROM of cervical spine and no tenderness.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, analogously coded 5299-5237 (cervical strain), citing combined ROM of 227 degrees.  The VA rated the neck condition 10%, coded 5237, based on the C&P examination 4 months after separation, citing full ROM without pain, muscle spasm, radiculopathy or tenderness.  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined motion of 225 degrees.  There was no 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.  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 adjudication for the neck condition.  

Low Back Pain.  According to the STR and MEB NARSUM, the CI’s back condition began in 2002 after sustaining an injury while in the field.  Radiographic studies were negative.  During 31 March 2004 MEB examination, 9 months prior to separation, the CI reported chronic upper back pain.  The physical examination showed no swelling, edema or tenderness.  There was full ROM.  The 26 August 2004 physical therapy ROM study, 4 months prior to separation, showed flexion of 100 degrees (normal 90) and combined ROM of 235 degrees (normal 240).  The 30 August 2004 MEB NARSUM addendum, repeats the findings of the 31 March 2004 MEB examination above and notes that an MRI of the lumbar spine was normal.  

At the 6 April 2005 VA C&P evaluation, 4 months after separation, the CI reported that he wore a back brace and described his back pain as “unbearable” during his flare-ups.  The last flare-up occurred the previous month.  The physical examination showed full ROM and normal posture and gait.  There was no pain, tenderness or muscle spasm.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing limitation of combined motion to 253 degrees without significant neurologic abnormality.  The VA rated the back condition 0%, analogously coded 5299-5243 (intervertebral disc syndrome), based on the C&P examination 4 months after separation, citing full ROM without pain, muscle spasm, radiculopathy or tenderness.    

The preponderance of examinations proximate to separation showed no limitation of thoracolumbar spine motion to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine and the MEB and C&P examinations did not note the presence of painful motion, muscle spasm, guarding or localized tenderness.  There was no history or evidence of vertebral body fracture with loss of 50 percent or more of the height, nor was there evidence of additional functional loss that would impact functioning in the average civil occupation.  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 adjudication for the back condition.  

OSA.  According to the STR and MEB NARSUM a sleep study (polysomnogram) was performed in February 2003 to evaluate complaints of an enlarged uvula with significant swelling.  The CI was hospitalized several times because of his inability to breathe or swallow.  The study confirmed the diagnosis of severe OSA and an apnea hypopnea index of 42 events per hour indicative of severe oxygen desaturation with no response to the continuous positive airway pressure (CPAP) due to a compromised airway.  The 30 August 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of excessive daytime sleepiness.  The physical examination showed a large elongated uvula with a narrow airway.  The CI required the use of nasal CPAP nightly.  

At the 14 April 2005 VA C&P evaluation, 4 months after separation, the CI reported that his symptoms had decreased in severity.  He still required CPAP therapy at night for optimal relief of daytime and nighttime problems.  The physical examination showed FEV1/FVC of 82 percent pre-bronchodilator and 82 percent post-bronchodilator.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA 0%, coded 6847 (OSA), citing mild industrial impairment IAW DODI 1332.39, E2.A1.2.21 (rescinded in 2008).  The VA rated the OSA condition 50%, coded 6847, based on the C&P examination 4 months after separation, citing the use of CPAP.  The OSA was documented in the STR, the CI was placed on a permanent profile for OSA and CPAP was identified by the NARSUM examiner as a required treatment.  The VASRD §4.97 provides for a minimum rating of 50% for OSA requiring a breathing assistance device, and the evidence establishes that this criterion was met.  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.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 50% for OSA, coded 6847.  

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, the panel unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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	5299-5237	10%	
Chronic Subjective Low Back Pain		10%	
Obstructive Sleep Apnea	6847	50%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161025, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180002654, 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