RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE: pd-2017-01543
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20070301

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Construction Engineer Supervisor and Recruiter, medically separated for “chronic low back pain” with a disability rating of 0%.

CI CONTENTION:  “Back lower, knees, nerve damage, no cartilidg [sic] between my knees, sleep apnea, hearing loss tubes inserted, joint disease.”  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 - 20070126	VARD - 20071203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	0%	Lumbosacral Spine, Degenerative Joint and Disc Disease 	5242	20%	20070530	
Obstruction Sleep Apnea (OSA)	Not Unfitting	OSA	6847	50%		
Left and Right Knee, Patellofemoral Pain Syndrome		Left Knee, Patellofemoral Syndrome	5299-5014	10%		
		Right Knee, Patellofemoral Syndrome	5299-5014	10%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  According to service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in May 1997 when he landed on his side during a parachute jump.  Surgery was not indicated and radiographic imaging (MRI) revealed early degenerative changes of the L4-5 and L5-S1 disc and a small disc protrusion at L4-L5 with mild central canal narrowing.  

The 10 January 2007 MEB NARSUM examination, 2 months prior to separation, noted CI complaints of chronic LBP exacerbated by doing more than 50 sit-ups, standing longer than 20 minutes, ruck marching and running; he was unable to lift more than 20 pounds.  Physical examination revealed full range of motion (ROM) and no lumbar lordosis loss, paraspinal muscle spasm or tenderness.  The 26 January 2007 MEB NARSUM ROM examination, 1 month prior to separation, noted no specific complaints and confirmed unremarkable spine findings from the MEB NARSUM.  Goniometric ROM measurements after repetition (in degrees) were: flexion to 90 (normal), extension to 30 (normal), left and right lateral flexion to 30 (normal), and left and right lateral rotation to 30 (normal); painful motion was not addressed.  

At the 3 May 2007 VA Compensation and Pension (C&P) general medical evaluation, 2 months after separation, the CI reported back pain increased with frequent bending, walking more than  half a mile, and climbing more than one flight of stairs.  He could not sit or stand for more than 20 minutes or handle weights more than 25 pounds.  Physical examination showed a normal gait and posture with no use of an assistive device.  There was spinal tenderness, but no muscle spasm or nerve defect.  “Dorsolumbar” ROM was flexion to 60 degrees and a combined ROM of 180 degrees after repetition and without painful motion or ROM reduction.  During the 10 October 2007 VA physical therapy evaluation, 7 months after separation, the CI complained of chronic LBP and ambulated with a cane and minimal limp for an unlimited distance.  Physical examination showed the “trunk with 50 percent deficit secondary to soft tissue and muscular tightness.” 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5237 (lumbosacral strain), citing no mechanical loss of motion.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P evaluation, citing limitation of flexion.  Members noted from both the MEB NARSUM and C&P examinations, that the CI only reported symptoms with extended activities, lifting greater than 20 pounds or prolonged sitting.  The panel also placed greater probative value on the MEB NARSUM ROM examination, which was closer to the date of separation, and agreed there was no limitation of flexion (forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees) to justify a 10% rating.  There was also no evidence of painful motion of the back with functional loss to support a 10% rating (based on §4.59, §4.40 and §4.45); and no record of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of 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 adjudication for the chronic LBP condition.  

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA); Left and Right Knee Patellofemoral Pain Syndrome.  The panel’s main charge is to assess the fairness of the PEB’s determination that these contended conditions were not unfitting.  The panel’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

OSA.  According to the STR and MEB NARSUM, the CI was diagnosed with OSA in January 2006, required and was prescribed a continuous positive airway pressure machine (CPAP), and used the device every night.  The OSA was permanently profiled as “P3” requiring continued CPAP use and no assignments without an uninterruptable power source.  The commander noted the CI could not perform his military specialty due to severe limitations from OSA and other conditions.  

During the 15 November 2006 otolaryngology (ear, nose and throat) evaluation, 4 months prior to separation, he reported some sleepiness, but the examiner opined that the CPAP was working.  At the 10 January 2007 MEB NARSUM examination, 2 months before separation, the CI stated he woke several times throughout the night with the CPAP, and that while he was less drowsy than before using the device, he still had significant daytime drowsiness.  The examiner noted the CPAP decreased OSA episodes to zero per night.
  
At the 23 April 2007 C&P mental disorder evaluation, 2 months after separation, the CI stated, “I use a CPAP but I still don't sleep well.  I get between four and five hours of sleep a night.  It seems like staying asleep is more difficult than falling asleep.  My mind is always waking me up, working over how to get more money."  During the 3 May 2007 C&P general medical evaluation, the CI reported using the CPAP machine for the previous 2 years with symptom improvement, and that “he went to bed around 10 o'clock PM and got up around 4 o'clock AM” with fairly good sleep and feeling “fresh” when he awoke.  He also stated that he did not feel tired during the day, require naps or regularly use any sleep medications. 

The panel directed attention to its fitness recommendation based on the above evidence.  The OSA condition was implicated by both the physical profile and commander’s statement. Members agreed that the CPAP treatment corrected the CI’s sleep impairment as recorded by the examinations proximate to separation.  While the PEB cited that he was deployable to most theaters with available electrical power, the panel majority noted that based on his specialty as a construction engineer, he could deploy to austere locations without reliable power.  Thus, the panel majority agreed the OSA condition did significantly interfere with the CI’s satisfactory duty performance at separation.  After due deliberation, the panel agreed that the preponderance of the evidence with regard to the functional OSA impairment favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 6847 and meets the VASRD §4.100-137 criteria for a 50% rating.  

Left and Right Patellofemoral Pain Syndrome.   According to the STR and MEB NARSUM, the CI’s left knee condition began in 1997 during jump school when he sprained his knee.  Onset of the right knee condition was not documented in the STR, and only the left knee was profiled “L3” with restrictions on carrying fighting loads, building fighting positions, 3-5 second rushes, running, ruck or prolonged marching, or repetitive stooping.  The commander stated the CI could not perform his military specialty due to severe limitations from his “knees” and other conditions.  

During the 14 November 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported “my left knee gives out and pops very bad” and the examiner documented “knee pain.”  At the 10 January 2007 MEB NARSUM examination, 2 months prior to separation, the CI complained only of chronic left knee pain exacerbated with activities, stairs and prolonged sitting, but denied instability and weakness.  Physical examination revealed bilateral patellar grind, crepitus, normal lower extremity motor strength, and no instability.  Bilateral ROM was “full” with no joint line tenderness; painful motion, swelling, effusion and locking were not addressed.  

At the 3 May 2007 C&P general medical evaluation, 2 months after separation, the CI reported bilateral knee pain, (left greater than the right) and “popping,” but no locking.  His left knee had a “giving out” sensation with instability, he wore a knee brace “on and off” for the previous few years, and had received several cortisone injections.  Physical examination showed a normal gait, with no bilateral swelling, effusion, crepitus, or instability.  Motor strength was normal but bilateral patella apprehension testing (partial dislocation) was positive.  Bilateral ROM was flexion to 130 degrees (normal 140) without painful motion, and extension to 0 degrees (normal); repetition did not elicit painful motion or reduce ROM.  The 14 July 2007 VA treatment note, 5 months after separation, documented the CI’s visit involved chronic left knee and back pain, and subsequent VA entries only recorded left knee pain.  

The PEB determined the left and right knee conditions to be not unfitting, but only the CI’s left knee was implicated by the physical profile, and the preponderance of available clinical evidence documented that only the left knee would have rendered the CI incapable of performing his military duties.  The MEB examinations solely recorded left knee complaints while the C&P evaluation reported pain in both knees, with the left worse than the right; however, subsequent VA treatment records only documented left knee pain.  The MEB forwarded “patellofemoral pain syndrome left greater than right,” which met retention standards for PEB adjudication.  Based on the preponderance of evidence, the panel determined that only the left knee condition significantly interfere with the CI’s satisfactory duty performance at separation.  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 right knee pain condition.  

The panel directed attention to its left knee rating recommendation based on the above evidence.  Members agreed there was no evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  There likewise was no limitation of motion which attained a 10% rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under those codes.  There was no fracture, nonunion or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  After due deliberation, and in consideration of all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the left knee pain condition, coded 5099-5024 (tenosynovitis).

BOARD FINDINGS:  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended OSA condition, the panel majority agrees that it was unfitting and recommends a disability rating of 50%, coded 6847 IAW VASRD §4.100.  The single voter for dissent recommended the condition was not unfitting and did not elect to submit a minority opinion.  In the matter of the contended left knee patellofemoral pain syndrome condition, the panel agrees that it was unfitting and recommends a disability rating of 0%, coded 5099-5024 IAW VASRD §4.71a.  In the matter of the contended right knee patellofemoral pain syndrome condition, the panel agrees that it cannot recommend it for additional disability rating.  There were 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 Low Back Pain	5237	0%	
Obstructive Sleep Apnea	6847	50%	
Left Knee Patellofemoral Pain Syndrome	5299-5261	0%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170306 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180005236, 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 50% 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