RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02752
BRANCH OF SERVICE:  Army	BOARD DATE:  20150605
SEPARATION DATE:  20070626

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Petroleum Laboratory Specialist) medically separated for a chronic back pain condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded an obstructive sleep apnea (OSA) condition for PEB adjudication.  The Informal PEB adjudicated “chronic back pain” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The OSA condition was determined to be not unfitting and not rated.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “VA Disability Rating is 60% while Military Disability Rating is 0%.” [sic]   

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

IPEB – Dated 20070510	VA* - (~7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	0%	Herniated Nucleus Pulposus, L5-S1	5243	10%	20080206	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20080206	
Other x 0 (Not In Scope)	Other x 2 	
RATING:  0%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20080221 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Back Pain.  The CI reported a history of low back pain (LBP) on 1 September 2004.  He was treated conservatively with medications and duty restrictions.  He then presented with a 2-day history of LBP following a mission and was again treated conservatively.  The range-of-motion (ROM) was normal as it was at a later visit on 1 November 2005.  A magnetic resonance image on 26 March 2006 showed a herniated disc at L4-5 and L5-S1 with the latter impinging the nerve root on the right.  A follow-up appointment on 30 March 2006 in physical medicine showed a normal neurological examination, but with limited ROM especially with maneuvers on the right.  He was treated with epidural steroid injections (ESI, injections near the nerve root) and physical therapy with benefit.  At the 22 June 2006 physical medicine appointment, he had considerable resolution of his LBP and it was thought that the radicular irritation had resolved.  The neurological examination remained normal.  At a primary care appointment on 14 December 2006, the neurological examination was normal as well.  The narrative summary (NARSUM) was dated 8 March 2007.  The CI reported occasional LBP with radiation into the right buttock, but also that he was able to control the pain by limiting his activity.  He took no medications for his LBP.  On examination, his gait, toe and heel walk, and neurological examination were normal.  There was neither spasm nor tenderness on palpation.  The ROM was pain free and exceeded VA normal values.  At the MEB examination 4 days later and just over 3 months prior to separation, the CI reported recurring back problems.  The examiner noted a full ROM, normal neurological examination, and negative provocative testing for nerve root irritation.  

At the VA Compensation and Pension (C&P) examination was performed 8 months after separation, the CI reported unlimited walking and no pain with daily activities.  His gait, neurological examination, and heel and toe walk were normal.  Motion was non painful.  His pain was referred along the right S1 nerve root.  The ROM was reduced in flexion at 80 degrees, but otherwise normal.  DeLuca criteria were negative with repetition.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back at 0% using the analogous code 5299-5242 (degenerative arthritis of the spine) while the VA rated the back at 10%, relying on the C&P examination ROM measurements, and using the code 5243 (intervertebral disc syndrome).  The Board noted that while the VA examination supports a 10% rating, the MEB examination is as complete and more proximate to separation.  It is therefore assigned a higher probative value.  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 back condition.  While the CI reported radicular symptoms on some examinations, the neurological examination was consistently normal.  The Board concluded therefore that an unfitting radiculopathy was not present at separation.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that OSA was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The OSA was profiled and judged to fail retention standards.  However, it was not implicated in the commander’s statement and the fitness reports prepared for the CI prior to diagnosis and treatment were good and indicated that he met duty requirements.  The OSA was reviewed and considered by the Board.  There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance.  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 it and so no additional disability rating is 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA conditions, the Board unanimously recommends no change from the PEB determinations 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 re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131220, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
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 XXXXXXXXXXXXXXXXXXXX, AR20150012745 (PD201302752)

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