RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03566
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060322

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Carpentry and Masonry Specialist, medically separated for “low back pain” and “degenerative joint disease of the right knee,” rated 0% each, with a combined 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 - 20060202	VARD - 20070430	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	0%	Degenerative Changes, Thoracolumbar Spine	5242	20%	20070118	
DJD of the Right Knee	5003	0%	Degenerative Joint Disease (DJD), Right Knee	5010-5260	10%	20070118	
Mild OSA	Not Unfitting	Obstructive Sleep Apnea (OSA)	6847	50%	20070108	
Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	10%	20070108	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  80%  	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had a long history of back pain with no known trauma.  Lumbar spine Xrays in December 2005 showed mild multilevel degenerative changes with osteophytes, endplate sclerosis and degenerative disk disease at L5-S1.  The 1 November 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, showed full active range of motion (ROM), and mild tenderness.  The 20 December 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of low back pain.  Physical examination showed a normal gait, and no muscle spasms or vertebral deformities.  Thoracolumbar ROM, after repetition, was normal, but goniometric measurements were not provided.  

At the 18 January 2007 VA Compensation and Pension (C&P) examination, 10 months after separation, the CI reported  constant localized pain in the lumbar spine area, with flare-ups approximately once every 3 months.  He also had intermittent left sided mid-back pain.  Physical examination showed tenderness, muscle spasms and an antalgic gait, but the CI also reported right knee problems and wore a brace on the right knee all the time.  Thoracolumbar ROM testing showed flexion of 90 degrees (normal) and combined ROM of 205 degrees (normal 240), after repetition, with painful motion.  There was no additional loss of ROM after repetitive use.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, analogously coded 5299-5237 (lumbar spine strain), citing full ROM without tenderness or spasm.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing thoracolumbar spine motions with flexion of 90 degrees with pain starting at 34 degrees.  

There was no pre-separation limitation of thoracolumbar spine motion to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine; however, the MEB examination noted the presence of localized tenderness.  A 10% rating was therefore warranted.  The panel noted the post-separation VA examination showed muscle spasm with an abnormal gait which supported a 20% rating; however, the abnormal gait may have been secondary to chronic right knee problems.  In any case the panel noted this examination was 10 months after separation and had less probative rating value than the pre-separation Service 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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the back condition, coded 5299-5237.  

DJD of the Right Knee.  According to the STR and MEB NARSUM, the CI’s right knee condition began with no known trauma.  Radiographs noted mild to moderate degenerative joint disease. 
The MEB examination revealed mild tenderness over the medial right knee.  The NARSUM examination noted complaints of right knee pain that was episodic in nature and worse with activity.  Physical examination showed no painful motion, instability or meniscal pathology.  There was a mildly positive patellar grind test but apprehension sign was negative.  Right knee ROM following repetitive movement was flexion of 110 degrees (normal 140) and extension of 0 degrees (normal).  

At the C&P examination, the CI reported pain, weakness and instability in his knees and right ankle.  He noted a giving-way sensation in the knees.  Physical examination revealed an antalgic gait but no evidence of instability.  Right knee ROM testing showed flexion of 120 degrees and extension of 0 degrees with painful motion.  There was no loss of motion after five repetitions.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 0%, coded 5003 (degenerative arthritis), citing no instability and full ROM.  The VA rated the right knee condition 20%, analogously coded 5010-5260 (leg, limitation of flexion of), based on the C&P examination, citing flexion limited to 98 degrees by pain and extension to 0 degrees.  

There was no evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) at examinations proximate to separation.  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).  No additional functional limitation was evidenced by the examinations.  Therefore the panel concluded there was not sufficient evidence to support a rating higher than the 0% adjudicated by the PEB.  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 right knee condition.  

Contended PEB Condition:  Allergic Rhinitis.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  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 there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

Contended PEB Condition:  Mild OSA (obstructive sleep apnea).  According to the STR and MEB NARSUM, the CI was initially referred to the DES for the OSA condition, which failed retention standards.  The MEB pulmonary addendum, dated 25 October 2005, noted persistent excessive daytime somnolence despite adequate treatment with continuous positive airway pressure (CPAP).  A stimulant medication was prescribed to treat the persistent daytime somnolence.  The pulmonary specialist recommended no assignment to areas where the CI could not utilize CPAP, maintain a regular sleep cycle or would be required to work excessively long schedules.  The commander’s statement noted that OSA prevented the CI from performing mission essential duties, participating in physical activities or deploying to a combat environment.  The permanent profile restricted the CI to locations where he would have access to a 120-volt electrical outlet for his CPAP machine and a regular sleep cycle of at least 8 hours in duration.  The panel majority agreed that there was a preponderance of evidence to overcome the PEB’s not unfitting determination for the OSA condition.  A 50% rating is supported IAW VASRD §4.97, coded 6847 (sleep apnea syndromes) for OSA that requires use of a CPAP machine.  There was no evidence to support a higher rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends the OSA as an additionally unfitting condition, rated 50% and coded 6847.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the right knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended allergic rhinitis, the panel recommends no change from the PEB determination as not unfitting.  In the matter of the contended OSA, the panel majority recommends it as an additionally unfitting condition with a disability rating of 50%, coded 6847 IAW VASRD §4.97.  The single voter for dissent submitted the appended minority opinion.  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	
Low Back Pain	5299-5237	10%	
Degenerative Joint Disease of the Right Knee	5003	0%	
Mild Obstructive Sleep Apnea	6847	50%	
COMBINED	60%	

AR20190006825, 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 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. 

	

MINORITY OPINION:  The PEB found the obstructive sleep apnea condition not unfitting and not ratable, and the minority member opines that there is not a preponderance of evidence to overturn the PEB’s finding.  The fitness evidence considered includes the commander’s statement, and the CI’s profile.  The commander, in his statement, said that the battalion was deployed to a combat environment in Afghanistan and that a carpentry and masonry specialist would have to perform many different strenuous activities with a limited amount of sleep.  The commander said that the CI could not perform any of the above (deployed) mission essential duties, and that the condition prevented him from participating in many physical activities and deploying to a combat environment.  The commander implied that the above limitations were due to the profile which restricted the CI to locations having access to a 120-volt electrical outlet (for CPAP machine), required nightly use of CPAP, and a regular sleep cycle of at least 8 hours in duration.  The commander did not comment on any specific sleep related performance issues, such as falling asleep on duty, oversleeping, excessive drowsiness etc., and he stated that the OSA condition did not affect the CI’s physical profile.  The minority member interpreted the OSA profile restrictions and commander’s comments as impacting deployability only, and being non-deployable is not a sole reason for an unfit determination.  The minority member recognized that the PEB, acting under the authority of the Secretary, reasonably determined that the CI being non-deployable was acceptable to accomplish the specified mission.  Therefore, there is insufficient cause to recommend a change in the PEB fitness determination for the OSA.   

The minority member agrees with the majority on the low back condition, and recommends a disability rating of 10%, coded 5299-5237.  

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5299-5237	10%	
Degenerative Joint Disease of the Right Knee	5003	0%	
COMBINED	10%