RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00586
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20060515

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

CI CONTENTION:  Requested review of “back surgery, hearing loss, and sleep apnea.”  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 – 20060315	VARD - 20061220	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Degenerative Disk Disease	5243	20%	20060821	
Bilateral Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	NSC	20060821	
Sleep Apnea 	Not Unfitting 	Sleep Apnea	6847	50%	20060821	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a long history of back pain which significantly worsened in February 2005 after a 12-mile march.  An MRI in May 2005 revealed minimal straightening of the lumbar spinal curve and degenerative disc disease (DDD) of the lumbosacral spine with mild to moderate narrowing of exiting nerve canals.  

The 8 December 2005 MEB physical therapy (PT) range of motion (ROM) study, 5 months prior to separation, showed forward flexion of 60 degrees (normal 90), extension of 10 degrees (normal 30), left lateral flexion of 15 degrees (normal 30), and normal range in right lateral flexion and bilateral rotation.  The combined ROM was 175 degrees (normal 240).  The 9 December 2005 MEB NARSUM contained no pertinent physical examination (PE) findings.  

At the 21 August 2006 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported constant LBP with pain extending into both legs, left greater than right, but denied episodes of incapacitation.  The PE revealed tenderness about the paraspinal muscles of the mid-back, but no muscle spasm or guarding.  Flexion was to 40 degrees with a combined thoracolumbar ROM of 100 degrees and pain during flexion, left lateral flexion and left rotation; there was no change with repetitive motion.  Strength and lower extremity muscle tone were normal with reflexes intact.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, analogously coded 5299-5237 (lumbar spine strain), citing tenderness and guarding with motion.  The VA rated the lumbar spine condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P evaluation, citing limitation of forward flexion.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees reported on both pre- and post-separation examinations.  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 20% for the LBP condition, coded 5299-5237.  

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA) and Bilateral Hearing Loss.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The MEB determined the OSA was medically unacceptable and the bilateral hearing loss medically acceptable.  

OSA:  The CI had a significant history of OSA for approximately 15 years.  He underwent nasal surgery in January 1999 and additional throat surgery in February 2001 with “much improvement” postoperatively, and was then maintained on a continuous positive airway pressure (CPAP) machine.  He deployed with his CPAP, but reported difficulties due to power supply and necessary support equipment issues.  The CI had a CPAP titration performed in November 2001 which showed that his post-surgery sleep apnea was effectively treated with the machine.  The commander’s statement noted the CI was diagnosed with OSA in 1998, but referenced profile limitations (running at own pace and distance, no ruck marching or sit-ups, and unable to move with a fighting load) that appeared to be related to his back condition.  There were no restrictions specific to the OSA condition, with the profile allowing wear of a protective mask and all chemical defense equipment, completion of the 2-mile physical fitness test run, and deployment with no related limitations.  The CI was found fit for duty by the PEB in November 2004 and a performance evaluation report from November 2004 through September 2005 rated “success” in all areas except one which was marked “excellence.”  Comments included “superb organizational and management skills,” “100% first time Go’s,” and “flawlessly analyzed supply distribution requirements.”  The CI was recommended for promotion with overall potential for service rated as “1” for superior.  The performance report reviewer was also the commander who wrote the statement.  Although the OSA condition was listed on the profile and the condition failed retention standards, there was no performance-based evidence from the record that it significantly interfered with CI’s satisfactory duty performance at or near separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB’s fitness determination for the contended OSA condition and so no additional disability rating is recommended.  

Bilateral Hearing Loss: The hearing loss condition was not profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at or near separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB’s fitness determination for the contended hearing loss 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 20% coded 5299-5237 IAW VASRD §4.71a.  In the matter of the contended OSA condition, the panel majority recommends no change from the PEB’s determination as not unfitting.  In the matter of the contended bilateral hearing loss condition, the panel recommends no change from the PEB’s 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	5299-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170219, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006530, 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