RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00509
BRANCH OF SERVICE:  ArMY	SEPARATION DATE:  20071222

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Petroleum Supply Specialist, medically separated for “low back pain” with a disability rating of 0%.   

CI CONTENTION:  “Review all conditions.”  The complete submission is at 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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.

RATING COMPARISON:  

SERVICE PEB - 20070828	VARD - 20080814	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	0%	Chronic Lumbosacral Strain	5237	20%	20080417	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20080331	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI’s back condition began in February 2005 without any specific injury or trauma.  At a 22 December 2005 medical clinic appointment, the CI complained of intermittent LBP without radicular pain and physical examination showed full range of motion (ROM).  Lumbar X-rays were normal and treatment consisted of a muscle relaxer and referral to physical therapy (PT).  At the PT evaluation on 6 February 2006, he reported LBP with some radiating pain into the lateral left knee during running.  Physical examination showed normal muscle strength and reflexes, and flexion was to 85 degrees (normal 90) with painful motion.  At a medical clinic visit on 29 August 2006, the CI reported LBP, and on examination, had a normal gait and posture.  There was spinal tenderness and muscle spasm, and thoracolumbar spine ROM was full with painful motion.  At PT follow-up visits, ROM measurements were “within normal limits.”  At a medical clinic appointment on 12 January 2007, 11 months prior to separation, the CI reported LBP, and the examiner noted a normal gait and posture with spinal tenderness and muscle spasms.  Thoracolumbar spine ROM was full; painful motion was present.  

The 17 July 2007 MEB NARSUM examination, 5 months before separation, noted complaints of chronic back pain.  Physical examination revealed a normal gait, spinal tenderness, and normal muscle strength; ROM was not addressed.  During the 30 July 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported chronic back pain.  There was spinal tenderness but ROM was measured.  At a PT evaluation on 17 August 2007, 4 months prior to separation, the CI reported LBP for over 1 year.  Physical examination revealed abnormal spinal contour and tenderness.  Repetitive goniometric ROM tests showed flexion to 90 degrees and combined ROM to 230 degrees (normal 240) with painful motion.
 
At the 17 April 2008 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported constant LBP which radiated down the right leg.  Physical examination revealed normal gait, posture, reflexes, and strength; straight leg raise testing for radiculopathy was negative.  Lumbar ROM was flexion to 50 degrees and all other measurements were “normal.”  Pain, but no ROM loss, was elicited with repetition.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 0%, analogously coded 5299-5237 (lumbosacral strain), citing tenderness to palpation.  The VA rated the low back condition 20%, coded 5237, citing limitation of flexion.  Members agreed the totality of ROM examinations proximate to separation did not support the minimum 10% rating for limitation of the thoracolumbar spine motion based on the General Rating Formula for Diseases and Injuries of the Spine.  However, there was localized spinal tenderness documented by the STR examinations proximate to separation to support a 10% rating.  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.  There was no documentation of intervertebral disc syndrome 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 recommends a disability rating of 10% for the chronic LBP condition, coded 5237.

Contended PEB Condition:  Obstructive Sleep Apnea (OSA).  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was permanently P3 profiled with the only restriction requiring “reliable electricity available at all times.”  Other physical restrictions were related to the CI’s back condition (no physical fitness test 2 mile run or sit-ups, but could perform alternate walk, swim or bike events).  The contended condition was implicated in the commander’s statement; however, the commander opined that even though the CI was non-deployable, the “service member can continue his service in the Army until he reaches his ETS [expiration of term of service] date.”  Primary care treatment entries in September 2006 and March 2007 indicated the CI had been utilizing continuous positive airway pressure (CPAP) device which was helpful.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition; and so, no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the chronic LBP condition, the panel recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended OSA condition, the panel recommends no change from the PEB determination as not unfitting.  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, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170214, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180007161, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

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

Sincerely,					      
Enclosure