RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03387
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060330

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Automated Logistics Specialist, medically separated for “chronic back pain” and “obstructive sleep apnea,” rated 0% each, with a combined disability rating of 0%. 

CI CONTENTION:  In addition to his back condition and obstructive sleep apnea (OSA), the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20060203	VARD - 20060428	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	0%	Lumbar Spine, Degenerative Disc Disease	5242	20%	20060329	
OSA	6847	0%	OSA	6847	50%	STR	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent lumbar spine surgery with L5-S1 fusion on 11 March 2005.  At the 5 October 2005 physical therapy range of motion (ROM) study, 6 months prior to separation, flexion was 70 degrees (normal 90) and combined ROM was 195 degrees (normal 240), after repetition.  The examiner noted the limitation was due to pain and stiffness.  At the 11 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported limited use of legs due to back problems.  Physical examination showed normal motor strength, sensation, reflexes and gait without tenderness.  Forward flexion, lateral flexion and extension were decreased and there was pain elicited with flexion.  The 21 November 2005 MEB NARSUM examination, 4 months prior to separation, noted complaints of constant back pain and occasional left leg pain aggravated by walking, standing or bending.  Physical examination showed a negative straight leg raise and normal motor strength, sensation and reflexes.

At the 29 March 2006 VA Compensation and Pension (C&P) examination, 1 day before separation, the CI reported constant daily 6/10 back pain, weakness, stiffness, fatigue and lack of endurance precipitated by physical activity and inclement weather.  The CI denied incapacitating episodes during the preceding 12 months.  Physical examination showed a normal gait without abnormality of posture or overt deformities, but there was tenderness.  The ROM study showed flexion of 50 degrees and combined ROM of 200 degrees without change after repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5241 (spinal fusion), citing painful limitation of motion.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing painful and limited motion of flexion from 30-50 degrees.  

The panel considered the disparate examinations and agreed the VA examination 1 day prior to separation was most complete and most reflective of the CI’s disability at separation.  The panel agreed that a 20% rating was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the VA examination at 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 of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5241.  

OSA.  According to the STR and the MEB NARSUM, a sleep study was performed in November 2005 to evaluate complaints of loud snoring and excessive daytime somnolence.  The study confirmed the diagnosis of mild OSA, and nightly CPAP (continuous positive airway pressure) was prescribed.  At the MEB examination (recorded on DD Forms 2807-1 and 2808), the CI’s blood pressure was 133/87 and examination of the heart and lungs was normal.  

The 17 January 2006 MEB NARSUM examination, 3 months prior to separation, noted the CI had just been diagnosed with OSA and was on a trial of CPAP but had not been seen for follow-up yet.  Physical examination showed blood pressure of 128/80 and examination of the heart and lungs was normal.  The 2 February 2006 staff psychiatrist memorandum, 1 day before separation, regarding social and industrial adaptability, noted the CI would likely experience good control of his apnea through the use of the CPAP machine and achieve adequate oxygenation.  

At the 29 March 2006 C&P general medical examination, the CI reported current use of CPAP and that it was helpful.  Physical examination of the cardiovascular and respiratory systems was normal and blood pressure was 133/77.  

The PEB rated the OSA 0%, coded 6847 (sleep apnea syndromes), citing mild industrial impairment with application of DoDI 1332.39 rating guidance, which differed from VASRD rating criteria.  The VA rated the OSA 50%, coded 6847, based on the STR, citing trial of CPAP machine for relief during November 2005.  There was evidence of OSA requiring the use of CPAP to support a 50% rating.  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.  In consideration of these facts, the panel unanimously recommends a disability rating of 50% for the OSA condition, coded 6847.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 50% for the OSA, coded 6847.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the obstructive sleep apnea, the panel 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain	5241	20%	
Obstructive Sleep Apnea	6847	50%	
COMBINED	60%	

The following documentary evidence was considered:

, 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.
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.

Enclosure