RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04823
BRANCH OF SERVICE:  army	SEPARATION DATE:  20050823

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty O4, Armor Officer, medically separated for “chronic right sciatica” with a disability rating of 20%.

CI CONTENTION:  Please consider 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 - 20050511	VARD - 20060616	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Sciatica	8720	20%	Right Lower Extremity Sciatica	8620	20%	20060403	
			Lumbosacral Spine DDD	5243	10%		
Obstructive Sleep Apnea (OSA)	Not Unfitting	OSA	6847	50%		
Right Scaphoid (Wrist) Surgery	Not Unfitting	Right Wrist Scaphoid Surgery Residuals	5215	10%		
Right Foot Pain	Not Unfitting	Right Foot Plantar Fasciitis	5099-5020	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Chronic Right Sciatica.  According to the service treatment record and the MEB narrative summary (NARSUM), the CI underwent an L5-S1 micro-laminotomy and right microdiskectomy in June 2002 due to an increase in right buttock and leg pain exacerbated when riding in a tank and when sitting.  During an orthopedic clinic visit on 19 April 2004 the CI reported persistent back pain and right thigh radiculopathy.  At a subsequent orthopedic visit on 18 January 2005, the CI complained of right leg and calf numbness, while low back pain felt “muscular.”  There was decreased right leg reflex.  

The 9 March 2005 MEB NARSUM examination, 6 months prior to separation, noted complaints of low back pain.  Physical examination showed the CI walked, sat, and stood well.  Heel and toe walk was normal.  There was a healed L5-S1 vertical 5 cm incision.  There was no spinal tenderness.  Spine flexion was within 10 inches of the floor (approximately 70-80 degrees, normal 90) and combined range of motion (ROM) was incomplete.  Lumbar lordosis (excessive inward curve) was increased.  Neurologic evaluation was unremarkable except for decreased light touch over the right calf and 5-/5 extensor hallucis longus (strength).  

During the 29 March 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported constant right leg pain and numbness with foot drop after walking short distances.  Physical examination showed decreased right ankle reflex.

At the 3 April 2006 VA Compensation and Pension (C&P) evaluation, 7 months after separation, the CI reported constant lumbosacral pain with flare-ups which radiated to the right leg.  Physical examination showed tenderness, an antalgic gait and positive SLR test.  Lumbar spine ROM was flexion to 90 degrees and combined ROM of 240 degrees (normal 240); painful motion was present.  There was no ROM loss with repetitive movement.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right sciatica 20%, coded 8720 (sciatic nerve neuralgia-moderate), citing swelling of the right S1 nerve root noted on MRI and rated as moderate neuralgia.  The VA also rated the right sciatica 20%, coded 8620 (sciatic nerve neuritis-moderate), based on the C&P examination, citing moderate sensory nerve impairment.

Panel members noted that the CI had radiating pain to the right leg; however, there was no muscle atrophy which is a marker of severe sciatic nerve involvement.  Although he reported foot drop after walking short distances, there was no objective evidence of a foot drop nor use of an ankle brace.  A higher rating of 40% requires a moderately severe condition; however, the MEB neurologic evaluation was unremarkable except for decreased right calf light touch.  Panel members considered a separate unfitting condition for low back pain, but the condition was neither noted in the MEB referral to the PEB nor was it adjudicated by the PEB; therefore, it was not in the panel’s scope of review.  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 sciatica.

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA), Right Scaphoid Surgery with Limitation of Motion and Pain, and Right Foot Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that contended conditions were not unfitting.  The OSA was profiled and determined by the MEB to fail retention standards, but was not implicated by the commander's statement.  The MEB examiner noted the CI had been recently diagnosed and placed on treatment for OSA.  However, the CI had no restrictions of activity per se due to the sleep apnea.  Panel members noted there was no recorded performance-based evidence to support OSA as an unfitting condition.  The commander’s statement signed on 16 March 2005, explicitly referenced the CI’s “chronic back problems” as the medical condition which made the CI physically incapable of reasonably performing his military duties.  The commander also referred to the physical profile stating, “profile prevents him [CI] from performing field duties, and without the ability to perform regular aerobic activity, he has had significant difficulty in maintaining the Army height and weight standards.”  Furthermore, the examiner who prepared the MEB NARSUM Addendum noted the CI had “recently diagnosed and placed on [CPAP] treatment.  The examiner opined the CI had “no restrictions of activity per se due to the sleep apnea, but should use the CPAP during sleep and should refrain from driving if excessively sleepy.”  The panel noted the CPAP evidence was quite limited as the titration level for CPAP utilization was not given nor was there any follow-up to determine its effectiveness or evidence the CI tolerated or used the CPAP.  Nevertheless, the panel's discussion addressed the required use of an electrical source to operate the CPAP and the materials to maintain the CPAP machine in a hygienic manner and proper working order.  The panel deliberated whether the CI, an armor officer, would have access to an electrical source for the CPAP when training or during a combat mission.  It was noted that some tanks have electrical sources, but the question was raised as to whether that operational environment was appropriate for use of the CPAP equipment and/or to be an adequate site to sleep.  The panel majority determined that the CI served for the vast majority of his years without reported OSA related symptoms or diagnosis.  Additionally, the MEB examiner opined that the CI had no restrictions of activity due to the sleep apnea.  The panel majority determined the preponderance of evidence did not support the OSA as an unfitting condition.  After due deliberation, the panel majority concluded there was insufficient cause to recommend a change in the PEB fitness determination for the OSA and so no additional disability rating is recommended.

The right scaphoid and right foot conditions were not profiled, implicated in the commander’s statement nor judged to fail retention standards.  The MEB examiner indicated the CI had successful right scaphoid surgery and a history of a stress fracture that caused right foot pain.  However, there was no performance-based evidence from the record that either of these contended conditions significantly interfered with satisfactory duty performance at separation.  The panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the right scaphoid or right foot conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the right sciatica and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the contended OSA condition, the panel majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent recommends the OSA condition as an unfitting condition and rated 50%, but elected not to submit a minority opinion.  In the matter of the contended right scaphoid condition and right foot conditions, 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 20170524, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180006731, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	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.
 
Sincerely,					      
Enclosure