RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01556
BRANCH OF SERVICE:  Army	BOARD DATE:  20150108
DATE OF PLACEMENT ON TDRL:  19991115
DATE OF PERMANENT SEPARATION:  20040812

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Army SPC/E-4 (92Y1O/Unit Supply Specialist) medically separated for lumbar pain and narcolepsy.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued an L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar pain and narcolepsy conditions, characterized as “chronic lower back pain (LBP)” and “narcolepsy with associated cataplexy,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions “depressive disorder, NOS [not otherwise specified]” and “borderline intellectual functioning,” as medically acceptable.  The Informal PEB adjudicated “narcolepsy with one episode of cataplexy per week” and “chronic LBP” as unfitting, rated 20% and 10%.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was placed on the Temporary Disability Retirement List (TDRL) effective on 15 November 1999.  Upon re-evaluation in February 2001 and July 2002, the narcolepsy condition remained unfitting, but not stable for rating purposes.  In August 2004, the CI’s LBP and narcolepsy conditions remained unfitting, but had stabilized for rating purposes.  The PEB did rate these conditions at 10% and 0% respectively with likely application of DODI 1332.39.  The CI made no appeals and was medically separated.

CI CONTENTION:  DD Form 294, Block 3 and 12.  The CI attached a one-page statement to his application, which was reviewed by the Board and considered in its recommendations.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting LBP and narcolepsy conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records.

RATING COMPARISON:

Final Service PEB - 20040802 | VA (63 Mo. Prior to Adjudication Date*) - Effective 19991115
On TDRL - 19990820 | Code | Rating | Condition | Code | Rating | Exam
Condition | | TDRL | Sep. | | | |
Chronic LBP | 5299-5295 | 10% | | Chronic LBP with Degenerative Disc Disease | 5292 | 20% | 19991217
| 5237 | | 10% | | | |
Narcolepsy | 8108 | 20% | 0% | Narcolepsy with Cataplexy | 8108 | 20% | 19991217
Other x2 (Not in Scope) | Other x8 (Not in Scope)
Combined:  30% → 10% | Combined: 50%
*Reflects VA rating exam proximate to TDRL placement (Final VA rating did not change at time of Separation)
ANALYSIS SUMMARY:

Chronic LBP Condition.  On 29 March 1995, the CI had epidural anesthesia and 2 days later developed headaches and LBP due to a presumed cerebral spinal fluid leak (a known complication of epidural anesthesia).  On 24 April, he underwent an epidural “blood patch” in an attempt to treat the headaches and LBP, which did result in resolution of the headaches, but not the LBP.  The CI was seen for a 7-month history of LBP and physical exam findings of tenderness to palpation L5-S1 and decreased range-of-motion (ROM).  The examiner prescribed pain medication and a consult to physical therapy (PT).  The CI was evaluated by PT, orthopedics, and pain clinic for the LBP with physical exam findings of positive straight leg raise, bilateral, paravertebral muscle spasm, and tenderness.  A lumbar spine magnetic resonance imaging demonstrated L4-5 slight posterior disc bulging with a possible annular tear, and early degenerative disc changes.  On 23 September 1996, the CI was involved in a motor vehicle accident that aggravated his LBP symptoms.  The initial MEB narrative summary (NARSUM) exam approximately 10 months prior to TDRL placement documented that the CI reported he was unable to stand or sit for a long period of time or pick up his son.  The MEB NARSUM physical exam findings are summarized in the chart below.  The commander’s statement noted that the CI was able to perform clerical duties; however, he could not perform the majority of the physical requirements of his MOS.  The VA Compensation and Pension (C&P) exam approximately 3 months after TDRL placement documented continued non-radiating aching and occasionally burning band-like LBP across both the right and left paraspinal region throughout the day and interrupted his sleep.  The CI had to frequently change positions because of the pain.  The VA C&P physical exam findings are summarized in the chart below.

There was one estimated and two precise ROM evaluations 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) | NARSUM 10 Mo. Pre TDRL Placement / 68 Mo. Pre-Sep | VA C&P 3 Mo. Post TDRL Placement | VA C&P 5 Mo. Pre-Sep (also used for the TDRL removal eval)
Flexion (90 Normal) | “decreased” | 40 | 50
Combined (240) | | 180 | 95
Comment | Chronic LBP | Pos. painful motion & tenderness to palpation; Normal gait, strength, sensation & reflexes; Neg. Straight leg raise | Pos. antalgic gait & paraspinal muscle spasm; Normal strength, sensation & reflexes; No Deluca criteria
§4.71a Rating | | |
5295 | 10% | 10% | 20%
5237 | 10% | 10% | 20%

The 2001 VA Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, were in effect at the time of TDRL placement and then changed to the current §4.71a rating standards on 26 September 2003, 4 months prior to TDRL removal.  The 2001 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment.  Per DoDI 6040.44, the Board must apply the VASRD rating criteria in effect at the time of PEB action (in this case, the determination to put the CI on TDRL; and then the determination to remove the CI from TDRL and medically separate him).  For the reader’s convenience, the 2001 rating codes under discussion in this case are excerpted below.

5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion...............40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position................……………………………………………………….20
With characteristic pain on motion..............................10
With slight subjective symptoms only...........................0

5292 Spine, limitation of motion of, lumbar:
Severe...................................................... 40
Moderate.................................................. 20
Slight........................................................ 10

The Board directed attention to its TDRL placement rating recommendation based on the above evidence.  The PEB rated the chronic LBP condition as analogous to 5295 and assigned 10% rating based on characteristic pain on motion.  The VA coded the chronic LBP with degenerative disc disease condition as 5292 (limitation of lumbar spine motion) and rated at 20%.  The initial NARSUM exam documented “decreased ROM,” whereas the VA C&P exam provided complete ROM measurements with detailed examiner comments.  While ROM measurements were not required, the VA examination does document limited ROM of the lumbar spine and pain with motion.  The Board assigned greater probative value to the VA C&P examination because of the detailed comments, documented ROM measurements, and it was proximate date to TDRL placement.  The Board considered the two most appropriate coding options of 5295 and 5292.  Code 5295 would result in a rating of 10%, as there was no documented muscle spasm on extreme forward bending, or unilateral loss of lateral spine motion in standing position as required for the 20% rating.  Code 5292 code would result in a rating of 20% if Board members acknowledged that the CI’s condition at the time of TDRL placement represented “moderate” limitation of motion under the “old” spine rules.  The Board further reviewed the probative C&P exam showing lumbar (vs. thoracolumbar) ROM of 40 degrees and agreed this most likely equated to a “slight” disability under code code 5292.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB adjudication for the chronic LBP condition at placement into TDRL.

The VA C&P exam approximately 6 months prior to TDRL removal documented that the CI had continued LBP.  He required muscle relaxing techniques and a non-steroidal anti-inflammatory drug twice daily to reduce the LBP.  The VA C&P physical exam findings were summarized in the chart above.  The TDRL evaluation (which served as the basis for the PEB’s TDRL removal rating) 3 months prior to TDRL removal quoted the ROM measurements documented by the VA C&P exam performed 6 months prior to TDRL removal.  Those ROM measurements were summarized in the chart above.

The Board directed attention to its rating recommendation for permanent rating based on the above evidence.  The spine rules were changed to the current §4.71a rating standards on 26 September 2003.  The CI separated 11 months later and the PEB applied VASRD code 5237 (lumbosacral or cervical strain) and rated at 10%.  There was no current VA rating decision (VARD) that corresponds to the 2004 VA C&P exam for review by the Board; however, the VA’s 20% rating was continued for the subsequent 10 years.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The documented C&P ROM of 49 degrees forward flexion met the 20% rating criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 20% for the chronic LBP condition.

Narcolepsy Condition.  The CI was seen for an evaluation of excessive daytime somnolence on 1 July 1998.  The CI had a history of occasional snoring with no witnessed apneic episodes, headaches when he was awake, and was tired, exhausted and very sleepy during the day.  He would take a short nap if watching TV, but then awaken and stay awake until 2 or 3 o’clock in the morning.  The examiner opined that the CI had “sleep drunkenness” often and complained of clear-cut sleep paralysis and cataplexy.  The excessive somnolence had occurred for 3-4 years prior and was getting worse.  The physical exam was normal.  The examiner diagnosed dyssomnia-disturbance in the quality, amount or timing of sleep, intrinsic sleep disorder and to rule out narcolepsy or periodic limb movement.  The sleep study was consistent with the diagnosis of narcolepsy.  The examiner prescribed medication specific to the narcolepsy (Pemoline) and also prescribed medication for the cataplexy (Anafranil).  In follow-up 2 weeks later, the CI was still having episodes of cataplexy though he felt that his narcolepsy and excessive daytime somnolence was approximately 50% improved.  The examiner adjusted his medication accordingly.  The Pulmonologist diagnosed cataplexy and noted symptoms of muscle weakness when exposed to loud noises, strong emotions, anger, and happiness.  The examiner opined that the CI was not appropriate to remain on active duty due to the propensity of exposure to loud noises while on active duty.  The neurology addendum to the MEB NARSUM approximately 3 months prior to TDRL placement documented that the CI suffered from chronic sleepiness and that his cataplexy episodes had decreased from two episodes per week to one episode per week while on medication.  The physical exam findings were normal.  The examiner opined that the CI fulfilled the clinical criteria for narcolepsy and his cataplexy was poorly controlled.  He further noted that the CI was restricted from working at heights greater than two feet, operating heavy machinery and using stairs.  The VA C&P exam 3 months after TDRL placement documented that the CI could not work at heights, climb stairs or climb ladders or operate dangerous and heavy machinery.

The Board directed attention to its TDRL placement rating recommendation based on the above evidence.  The PEB coded the narcolepsy condition as 8108 (narcolepsy) and rated (with likely application of DoDI 1332.39) at 20% citing “…definite industrial impairment based on the neurology description.”  The VA also coded the narcolepsy with cataplexy condition as 8108 and rated it 20% citing “An evaluation of 20 percent is granted for at least one major seizure in the last two years, or at least two minor seizures in the last six months.”  The Board acknowledges VASRD code 8108 note (2) which states, “…a minor seizure consists of a brief interruption in consciousness or conscious control… sudden loss of postural control (akinetic type) as adequate to encompass cataplexy as a minor seizure equivalent.”  The two neurologic conditions were well documented in the service treatment record as requiring ongoing medication and close follow-up.  The neurologist documented that the CI’s cataplexy episodes had decreased from two episodes per week to one episode per week at TDRL placement.  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 narcolepsy condition at TDRL placement.

The CI was seen in follow-up by and noted to have cataplexy episodes three times per day as well as excessive daytime somnolence.  He was taking all of his prescribed medication, yet the cataplexy continued.   A Neurologist documented, 27 months prior to separation, that the CI continued with three cataplexy episodes daily as well as blackouts at least once a day and five episodes daily of falling asleep during talking or eating.  The physical exam was normal.  The examiner opined that the CI had a moderate to severe impairment.  Within 7 months of separation, the CI was evaluated by a psychiatrist and a neurologist who both commented on the CI’s narcolepsy/cataplexy.  The psychiatrist evaluated the CI 7 months prior to TDRL removal and made the following remarks:

“He also reports a problem with narcolepsy associated occasionally with episodes of cataplexy, and has had two of those episodes.  He reports that narcolepsy has been confirmed by sleep EEG, and he is under treatment by Dr. [local provider’s name], who is treating him for depression as well as narcolepsy.”

The evaluating neurologist, 2 weeks later, documented that the CI was taking two medications with no overall change in his status.  His final impression was:

“The patient's overall status is unchanged.  I do not believe that this condition has become stable, as the patient continues to have four to five episodes of sleep/blackout on a daily basis.  While there has been no increase in the frequency of the above episodes, nevertheless they occur sufficiently frequently to keep him disabled.”

The Board directed attention to its rating recommendation for permanent rating based on the above evidence.  The PEB coded the narcolepsy condition as 8108 and rated at 0% with the following citation:

“Narcolepsy for which Soldier is not using any medication as far as can be determined.  Soldier and Syracuse NY VAMC were not able to provide any pharmacy records as requested.  There is no evidence that this has any impact on the Soldier's industrial capabilities.”

There is no current VARD that corresponds to the 2004 VA C&P exams for rating; however, the 20% rating for narcolepsy was continued for the subsequent 10 years.  The pulmonologist and the neurologist documented that the CI continued to have catalepsy while taking medications; however, different frequencies were noted.  The neurologist opined that the CI had a moderate to severe impairment.  These two-pre TDRL removal examinations documented that the PEB’s adjudication was most likely based on insufficient information or documentation present for their review.  The Board considered the wide discrepancy in frequency of the cataplectic episodes between the psychiatrist (two episodes) and the narcoleptic episodes described by the neurologist (“…four to five episodes of sleep/blackout on a daily basis.”)  Board members agree that the evidence present for review documents that at TDRL removal, the CI did have a confirmed diagnosis of Narcolepsy with a history of seizure like episodes; thus exceeding the 10% rating criteria for Narcolepsy under VASRD §4.124a.  Board deliberations settled on consideration of the frequency of the episodes at TDRL removal, which serves as the basis for the rating recommendation for this condition.  The evidence present for review supports that the CI’s condition did not improve and likely worsened.  The Board members agree that the episodes became more frequent than the “At least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months” VASRD criteria for the 20% rating level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 40% for the narcolepsy condition.

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 for rating narcolepsy was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the chronic LBP condition, the Board unanimously recommends no change in the TDRL placement rating and the Board unanimously recommends a permanent rating of 20% coded 5237 IAW §4.71 at TDRL removal.  In the matter of the narcolepsy condition, the Board unanimously recommends no change in the TDRL placement rating of 20%; however, the Board unanimously recommends a permanent rating at removal from TDRL of 40% coded 8108 IAW §4.124.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified to reflect a disability rating of 30% for the prescribed period of temporary retirement (IAW §4.129), and then a permanent combined 50% disability retirement effective as of the date of her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
| | TDRL | PERMANENT
Chronic Low Back Pain | 5295 / 5237 | 10% | 20%
Narcolepsy | 8108 | 20% | 40%
COMBINED | 30% | 50%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130916, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			
XXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150007435 (PD201301556)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 50% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-01556