Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	BRANCH OF SERVICE:   Army 
CASE NUMBER:  PD12001543	SEPARATION DATE:  20030530
BOARD DATE:  20130423

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Duty MAJ/0-4 (15B, Blackhawk pilot), medically separated for low back pain (LBP).  The CI had over a 2 year history of chronic back pain which did not respond to conservative treatment measures.  The chronic back pain could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  The CI also had a long history of daytime somnolence and Obstructive Sleep Apnea (OSA) which was treated with conservative measures, surgeries, continuous positive airway pressure (CPAP), and a dental appliance.  The CI had improvement in his symptoms, but continued to report difficulty with daytime hypersomnolence.  He was issued a permanent P2, L3 profile and referred for a Medical Evaluation Board (MEB).  The LBP and OSA were adjudicated by the MEB as medically unacceptable.  The CI appealed the MEB decision; it confirmed its findings and recommendation and then forwarded both condition to the Physical Evaluation Board (PEB).  The PEB adjudicated the LBP as unfitting, rated 10%, with application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40, Appendix B-39.  The OSA condition was found to be not unfitting.  The CI made no further appeals and was medically separated with a 10% disability rating.  

CI CONTENTION:  “I was referred to the MEB/PEB for severe obstructive sleep apnea (OSA) for which CPAP prescribed by my attending Sleep Specialist and chronic lower back pain.  I had also been diagnosed by multiple sleep studies to have severe Hypersomnolence but this condition was not viewed separately from my OSA for the MEB/PEB.  The MEB/PEB confirmed the back pain and awarded 10% disability for that.  The MEB found my OSA to be in the line of duty, but the PEB assigned 0% disability.  I appealed the MEB findings to attempt to have my diagnosed hypersomnolence included, to update my current OSA status of attempting other forms of treatment besides CPAP, and request clarification of the industrial adaptability impairment evaluation (which had not been done at that point).  As a result of my MEB appeal, Dr. Doane, the PPBD Medical Director, completed an Addendum to the MEB based on a 10 minute phone call with me.  Dr. Doane was not one of treating physicians, nor is he a Sleep Specialist.  I had only met him briefly for an administrative summary of the PPBD process.  Yet he concluded, despite documented medical tests and opinions of Sleep Specialists who had examined me, that my OSA was corrected by my non-prescribed treatment and that I was not suffering from hypersomnolence anymore.  His erroneous assumptions were the exact opposite of what I tried to impart.  Upon seeing the Addendum he wrote, I replied with a detailed rebuttal stating that my OSA had not even been tested while using my alternative treatment so it couldn't be assumed to be corrected and that my hypersomnolence was a separate condition from my OSA and that I had significant issues that I suffered from due to it backing it up with numerous examples.  The findings and recommendations of Dr. Doane were accepted in contradiction of
my attending physician, a ENT specialist, my two consulting Sleep Specialist physicians, and numerous tests documenting both my OSA and hypersomnolence.  The Boards should have found my OSA required prescribed CPAP and awarded 50% disability and medical retirement.”

SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.”  The Service ratings for unfitting conditions will be reviewed in all cases.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for the Correction of Military Records.  

RATING COMPARISON:  

Service IPEB – Dated 20021206 | VA (4 Mos. Post-Separation) – All Effective Date 20030531
Condition | Code | Rating | Condition | Code | Rating | Exam
LBP | 5299-5295 | 10% | Chronic LBP w/DDD | 5293-5292 | 10* | 20030819
OSA | Not Unfitting | OSA | 6847 | 30%* | 20030819
↓No Additional MEB/PEB Entries↓ | 0% X 2 / Not Service-Connected x 3* |
Combined:  10% | Combined:  40%
*OSA rated 50% with 20031007 VARD due to CPAP usage & CI was a no-show for the original C&P exam; Hypersomnia was service connected March 2009 with a 0% rating, effective 20031008.

ANALYSIS SUMMARY:  The Military Disability Evaluation System (MDES) is responsible for maintaining a fit and vital fighting force.  While the MDES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  The MDES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the VA but not determined to be unfitting by the PEB.  However, the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the veteran’s disability rating should his degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.  The Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected DES improprieties in the processing of his case.  

Low Back Pain.  There were 3 goniometric range of motion (ROM) evaluation in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.  

Thoracolumbar ROM
(Degrees)

PT~12 Mo. Pre-Sep
(20020509)

MEB ~12 Mo. Pre-Sep
(20020522)

VA C&P ~4 Mo. Post-Sep
(20030912)

Flexion (90 Normal) | 60 | 90 | 90
Combined (240) | 180 | N/A | 240
Comment | Gait normal; neg SLR | Neg straight leg raise(SLR) | + Pain on ROM; +SLR (B); muscle spasm and radiation of pain
§4.71a Rating | 20%* | 0% | 0%

The CI had a history of chronic back pain dating back to June 2000.  He reported non-radiating pain, at that time.  He was referred to physical therapy (PT) and given muscle relaxants and non-steroidal anti-inflammatory (NSAID) medications for pain relief.  The CI had some initial improvement; however, the pain continued and he underwent a course of traction following a MRI on 22 December 2000.  It revealed “mild L4-5 and L5-S1 disc desiccation without evidence of herniation, central canal, or neuroforaminal compromise.”  A note from an examination of the back on 09 May 2002, a year prior to separation, reported that the CI had persistent chronic LBP with “periodic radicular” complaints.  The examination of the back included ROM, as shown in the chart above.  The Board noted that the flexion and extension of the trunk reported on this examination was significantly worse than what was reported in previous and subsequent examinations.  It was also noted that the examiner annotated no tenderness to palpation, negative straight leg exam, normal strength in all lower extremity muscle groups, and a normal sensory examination.  An electromyogram (EMG) was performed, likely due to the complaints of radicular symptoms, on 20 May 2002.  It reported “EMG findings isolated to the paraspinals only that is suggestive of radiculopathy, but in the absence of definitive limb findings, they are non-diagnostic.  These can also be seen in facet arthropathy or DM.”  The MEB narrative summary (NARSUM) was based on an examination of the spine performed on 22 May 2002.  The NARSUM reported that the CI had a long history of chronic LBP with no specific injury.  Conservative treatment measures (including NSAIDs, PT, and Tens units) were reported as minimally effective.  The CI reported back pain with occasional numbness and radiating pain to his buttocks and thigh.  The MEB examination noted “mild tenderness in the lumbar area with mild paraspinal tenderness.”  The ROM examination was normal as indicated in the chart above, for the measurements provided.  Muscle strength in the lower extremities, distal tendon reflexes, and lower extremity pulses were all normal.  Sensation in the lower extremities was also normal.  Bilateral straight leg exams were negative.  X-rays were normal.  No comment was made on the gait.  On 12 September 2003, 3 months after separation the VA Compensation and Pension (C&P) examination was performed.  The CI reported that he was experiencing constant aching pain with shooting pain across his buttocks and down the back of his hamstrings.  The CI reported having flare-ups 2-3 times a day that lasted 1-2 minutes each.  He had not been prescribed bed rest by a physician.  Although the CI reported no functional impairment secondary to the LBP condition, he reported that he had lost 2-3 days of work.  The CI was able to perform all activities of daily living.  On examination, the CI’s posture and gait were both normal.  The lumbar spine was not ankylosed.  The ROM was normal as shown in the chart above.  The examiner reported no evidence of fatigue, weakness, lack of endurance, or incoordination.  The motor and sensory examinations were normal and bilateral reflexes were normal.  Radiographs performed on 19 August 2003 were normal.  

The Board directed its attention to the rating recommendation based on the above evidence.  Both the PEB and the VA assigned a 10% disability to the LBP condition, but used different codes.  The PEB analogously rated the condition using the 5299-5295 for lumbosacral strain.  The VA coded the condition 5293-5292 for intervertebral disc syndrome, mild with the presence of muscle spasm present on examination.  The Board agreed that the ROM evidence supported no more than a 10% disability, including consideration of §VASRD 4.59 (painful motion), §4.40 (functional impairment), or §4.45 (Deluca).  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating nor was there incapacitation noted.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition.  

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was the OSA condition.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’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.  The CI’s OSA condition was permanently profiled and was one of the conditions forwarded to the PEB by the MEB.  The MEB NARSUM referred to examinations performed on 02 April 2002 and 13 June 2002 with regards to the OSA condition.  The CI was 74 inches in height and 235 pounds.  His oral cavity exam revealed a large defect of the soft palate from the prior surgery (UPPP).  The CI’s tongue was described as moderate in size and his jawline, as prominent.  The physical exam was otherwise normal.  The NARSUM recommended that the CI be presented to the PEB for “OSA that has required greater than a year of management with of CPAP without correction after surgical intervention.”  The commander’s statement, dated by hand as 07 May 2002, a year prior to separation, detailed that CI had the OSA condition for 8 to 10 years and it had “progressively worsened in recent years.”  The commander reported that the CI was falling asleep at inappropriate times, even while driving.  The CI was an army aviator and, according to the commander, had to transfer “control of his aircraft on several occasions due to falling asleep” and would “routinely” fall asleep in briefings and meetings.  The commander also reported that the CI underwent surgery due to Army flight regulations, which require a “permanent correction” of the condition.  The surgery was not successful in correcting the OSA condition and the CI decided not to pursue further surgery.  The commander further discussed that the CI could qualify for different assignment, but this was not likely due to his “continued hypersomnia.”  The statement also discussed how the OSA condition affects deployability, in that the CI would only be able to deploy to “established areas” due to the “dependence on a CPAP machine.”  The PEB made a determination that the OSA condition was “not unfitting” based on updated information that was received from the MEB.  An addendum to the NARSUM, dated 19 November 2002, reported that the CI had been evaluated and treated by a local oral surgeon who had provided him with a nighttime oral appliance.  The CI was no longer using the CPAP machine.  The dental appliance, which reportedly repositioned the mandible and tongue, had been successful in reducing the CI’s snoring and improving in his sleep.  The CI reported improvement in daytime somnolence.  The CI reported sleepiness while driving and when working 12 hour shifts; however, he no longer had symptoms when working a regular shift.  The examiner reported that the CI was getting approximately 8 hours of sleep at night and opined that the OSA condition was “dramatically improved.”  The examiner stated that the CI’s profile would be altered to eliminate the requirement of the CPAP machine and that the CI would be fully deployable.  The examiner determined that the CI was now deployable and changed the profile from P3 to P2.  The CI submitted a written appeal, dated 20 November 2002, which detailed why the CI felt the addendum to the NARSUM failed to adequately reflect the status of his condition.  The CI reported “I now utilize an oral appliance (a mouthpiece) that seems to reduce the number of apnea events that I experience, although does not eliminate all of them.  I have not had a sleep study to verify the mouthpiece’s effectiveness.”  The CI explained that he continued to have daytime somnolence, despite routinely getting 8 hours of sleep, and detailed situations in which he continued to experience hypersomnolence.  The CI’s profile for the OSA condition was changed from a P3 to a P2 on 19 November 2002.  The PEB convened on 06 December 2012 and adjudged the OSA condition to be not unfitting.  The Board considered the PEB adjudication.  It noted that the condition had been changed to a P2 profile, which is not medically unacceptable, prior to the PEB.  While the commander had commented on the problems from the OSA condition, this was 6 months prior to the PEB and the use of the dental appliance.  The Board also reviewed the CI’s rebuttal.  While the CI affirmed the ongoing presence of symptoms, the last physician to evaluate the CI while on Active Duty determined that the condition was within medical standards and the PEB determined that it was not unfitting.  The Board reviewed the evidence and found it insufficient to overcome the PEB adjudication.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the OSA; and, therefore, no additional disability ratings can be recommended.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on DoDI 1332.39 and the USAPDA pain policy for rating chronic LBP condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended obstructive sleep apnea condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:  

UNFITTING CONDITION | VASRD CODE | RATING
Low Back Pain Condition | 5399-5395 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120708, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	           Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130010197 (PD201201543)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201543