RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02809
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090611

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Military Policeman, medically separated for “lumbosacral strain” with a disability rating of 20%.  

CI CONTENTION:  “Please 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 - 20090407	VARD - 20090711	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	20%	Lumbar Degenerative Disc Disease	5242	20%	20090513	
Obstructive Sleep Apnea, Severe	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20090513	
Headache Syndrome	Not Unfitting	No VA Placement	
Chronic Insomnia	Not Unfitting		
Left Knee Pain	Not Unfitting		
Bilateral Tinnitus	Not Unfitting		
Hypertension	Not Unfitting		
Weakness and Paresthesias of Dominant Right Upper Extremity	Not Unfitting		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Lumbosacral Strain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began insidiously in August 2007 after running and progressively worsened.  Lumbar spine X-rays in July 2008 were normal, but a lumbar spine MRI in August 2008 showed a small disc protrusion at L5-S1 with mild bilateral neuroforaminal narrowing.  During the 27 October 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported chronic low back pain.  Physical examination of the CI’s spine revealed normal contour, without scoliosis or palpable step off.  There was paravertebral muscle tenderness in the midline from L3 to L5 and palpable spasm in the right lumbar muscles.  Straight leg raise (SLR) testing was negative.  The CI could walk on his toes and heels and his gait was normal.  Lower extremity strength and reflexes were normal.  Thoracolumbar range of motion (ROM) after repetition showed flexion of 50 degrees (normal 90) and combined ROM of 195 degrees (normal 240), with painful motion.  

At the 13 May 2009 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported lower lumbar pain, usually triggered by prolonged walking, running or standing with random flare-ups of pain during the day and occasional spasm.  The CI denied weakness, fatigue, incoordination, sciatica and incapacitating episodes.  Physical examination showed mild loss of lumbar lordosis and mild tenderness over the L5-S1 paraspinous muscles.  Strength, sensation, and reflexes of the lower extremities were normal and SLR testing was negative.  Thoracolumbar ROM showed flexion of 45 degrees and combined ROM of 180 degrees.  Repetitive motion caused pain with flexion and extension but did not change the ROM.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5237 (lumbosacral strain), citing forward flexion less than 60 degrees.  The VA also rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of 45 degrees.  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), as reported on the MEB and VA C&P examinations proximate to separation.  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 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.  

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA), Headaches, Insomnia, Left Knee Pain, Bilateral Tinnitus, Hypertension and Right Upper Extremity Weakness.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Although the OSA was not implicated in the commander’s statement as impairing duty performance, the condition was profiled and judged to fail retention standards.  However, the PEB in its remarks indicated that although the CI used CPAP for the OSA, electricity for the CPAP machine should be available in most situations for a Soldier in his MOS and therefore, the OSA condition was not found unfitting.  There was no performance-based evidence from the record that the OSA condition significantly interfered with satisfactory duty performance at separation.  
None of the other contended conditions were profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended OSA, headaches, insomnia, left knee pain, bilateral tinnitus, hypertension and right upper extremity weakness, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170223, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record  

AR20190009860, 

Dear XXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.