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AF | PDBR | CY2012 | PD2012 01802
Original file (PD2012 01802.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201802
BRANCH OF SERVICE: Army  BOARD DATE: 20130509
SEPARATION DATE: 20070829


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (88M/Motor Vehicle Operator) medically separated for asthma and chronic low back pain (LBP). The CI complained of chest pain with exertional shortness of breath (SOB) and was diagnosed with asthma after a positive bronchial provocation test in May 2006. He also had a long history of LBP (dating back to a prior period of service with the US Marine Corps from 1996 to 2003) that was exacerbated (with no substantiated history of injury) during his deployment to Iraq in February 2006. The asthma and chronic low back conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3L3 profile (which also identified obstructive sleep apnea (OSA)) and referred for a Medical Evaluation Board (MEB). The asthma and chronic low back conditions, characterized as asthma and “Lumbar degenerative disc and Axial back pain limiting activity,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded five other conditions (see rating chart below) for the PEB adjudication. The PEB adjudicated asthma and chronic LBP conditions as unfitting, rated 10% and 0%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and AR 635-50 respectively. The remaining conditions (OSA, benign prostatic hypertrophy, patellofemoral syndrome (PFS) , posttraumatic stress disorder (PTSD) and congestive heart failure ) were determined to be not unfitting . The CI made no appeals and was medically separated with a 10% combined disability rating.


CI CONTENTION: “I feel that the PEB did not address or rate all of my medical conditions. They never rated me for PTSD, Sleep Apnea, Lower lumbosacral, or my right knee.”


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 asthma and lower back conditions are addressed below; and, additional contended conditions (OSA, right knee, and PTSD) are within the DoDI 6040.44 defined purview of the Board. The congestive heart failure and benign prostatic hypertrophy, identified as not unfitting by the PEB, were not requested for review and thus are not within the defined scope. 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. The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.


RATING COMPARISON:

Service IPEB – Dated 20070814
 VA - (7 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain
 5299-5237 0% Low Back Strain 5237 20% 20080319
Asthma
 6602 10% Sleep Apnea and Asthma 6602-6847 50% 20080319
Obstructive Sleep Apnea
 Not Unfitting
Patellofemoral Syndrome, Right Knee
 Not Unfitting Chondromalacia Patella, Right Knee 5014-5260 10% 20080319
PTSD
 Not Unfitting PTSD 9411 30%* 20080320
Congestive Heart Failure
 Not Unfitting No VA Entry
Benign Prostatic Hypertrophy
 Not Unfitting
No Additional MEB/PEB Entries
 Other x9
Combined: 10%
 Combined: 90%*
Derived from VA Rating Decision (VA RD ) dated 200 81010 ( most proximate to date of separation [ DOS ] )
* Initially rated 0% from 20031221 increased to 30% from 20070830 ; C ombined rating includ ed the 9 “other” rated conditions


ANALYSIS SUMMARY:

Asthma Condition. The CI complained of chest pain and SOB in mid-2006. When his cardiac evaluation was normal, he was sent to the pulmonary clinic for further evaluation. That evaluation included a bronchial provocation test (methacholine challenge test) that was positive for asthma. The CI began treatment with daily inhaled anti-inflammatory and achieved good control of symptoms after the dosage was increased. He was also given an Albuterol rescue inhaler for use as needed. The narrative summary (NARSUM) prepared 6 weeks prior to separation, noted that he was using inhalational anti-inflammatory medication daily and the Albuterol inhaler about every other day. His lungs were clear to auscultation with good air movement. The examiner’s conclusion was, “[The CI] has mild persistent asthma based on his airway hyperactivity (on methacholine) and his clinical symptoms. He reports exertional symptoms that make it difficult to exercise. He is currently treated with long acting beta agonists, inhaled corticosteroids and short acting beta agonist therapy. He has good control of his symptoms at the present time.” At the VA Compensation and Pension (C&P) exam performed 6 months after separation, the CI reported that he had only used his rescue inhaler on three occasions since separation. He was using the inhaled anti-inflammatory medication (Advair) daily. There was no raw data concerning pulmonary function tests (PFTs) available in the record, just the entry “normal PFTs” from the pulmonary clinic dated 26 March 2008. Review of the medication profile in evidence revealed the CI received one container of his inhaled corticosteroid and one container of his inhaled bronchodilator during the 12 months prior to separation.

The Board directs attention to its rating recommendation based on the above evidence. The PEB designated the CI’s asthma condition as mild, persistent and applied VASRD code 6602, bronchial asthma, and rated it 10% citing “intermittent medication use.” The VA combined the asthma and sleep apnea conditions into one condition and applied the analogous VASRD code 6602-6847 and rated it 50% based on the requirement for a breathing assistance device, such as a continuous airway pressure (CPAP). It is unknown why the VA did not apply separate codes and ratings for these two distinct conditions (asthma and sleep apnea). The CI had a definite diagnosis of asthma and the rating criteria under code 6602 are copied below for the reader’s convenience:
FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications ........100
FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids .......................................60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication .........30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy ..........................................................10

All documentation indicated that the CI was prescribed daily inhaled anti-inflammatory medications. There was no evidence in the service treatment record (STR) that the CI used the medications on a daily basis to achieve good control of his symptoms. There were no PFT results in the STR therefore; medication use was the only useful rating criteria present. Protracted deliberation ensued concerning the CI’s reports of daily medication use and the contradictory evidence contained in the medication profile. Board members agreed that the medication usage documented in the STR was not sufficient enough to overcome reasonable doubt in favor of the CI’s claim of daily medication usage. It is likely the PEB also had the medication profile which would account for their adjudication citing “intermittent medication use” as required for the 10% rating. The Board concluded that there was not enough evidence to support a 30% rating for daily medication use. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the asthma condition.

Chronic Low Back Condition. The CI had a long history of mechanical LBP that began sometime in 2000. There was no documentation of a causative injury and he had a normal physical exam of his spine upon his separation from the US Marine Corps in December 2003. There is a VA Rating Decision dated 15 November 2004 that documents a 20% VA disability rating for low back strain based on forward flexion of 40 degrees (90 degrees is normal). There are no other STR entries concerning the CI’s LBP. There is a Line of Duty Determination of “Yes” for an injury that occurred while the CI was deployed to Iraq; however, there was no other clinical documentation of an injury. That document was dated 1 February 2006 and listed “Lumbar Spondylosis/Lumbago/Sciatica” as the nature of the injury. The NARSUM documents that (in March 2006) the CI was thrown onto his back when an improvised explosive device (IED) exploded under the vehicle that was leading the vehicle the CI was riding in. This resulted in back pain that radiated into his left buttock and bladder control problems. He was diagnosed with sacroiliac joint (SI) pain after evaluation with magnetic resonance imaging (MRI) and myelogram (a radiographic study with dye to evaluate the spinal cord) proved essentially normal. His physical exam was normal. The examiner’s conclusion was “The patient has low back and SI pain. Manual labor jobs, particularly those involving lifting more than ten pounds, bending or twisting, impact activity and sitting and/or standing for constant periods of time will exacerbate his pain. His current MOS does not allow for such lifestyle modifications.” The C&P exam performed 6 months after separation document the following statement concerning the CI’s low back injury:

While overseas in 2005, the veteran had an episode of lumbar pain, which occurred while on a convoy. He was in a vehicle in Iraq, and a vehicle leading the convoy was thrown off track with a blast. This caused a change of direction and speed in the Veterans vehicle, which caused him to injury his back. There was no impact trauma. As a result, however, the veteran had urinary hesitancy and had cystoscopy, MRI, and myelography. There was no surgical indication that there was nerve root compression, hematoma, or tumor. The condition finally abated.

The CI’s symptoms were daily constant pain (no flare-ups) that was from 5 to 8 of 10, located in the low back with some radiation into the left buttock, but none down the leg. He denied urinary or fecal incontinence, saddle anesthesia or paresthesias and had no loss of ambulatory function. The physical exam revealed normal lumbar lordosis with no paraspinal tenderness. Forward flexion was full at 90 degrees and all movements of the axial skeleton were done with four repetitions and revealed no weakness, pain, fatigability, loss of coordination, and no loss of joint excursion.

The Board directs attention to its rating recommendation based on the above evidence. The PEB applied the analogous VASRD code 5299-5237, lumbosacral strain, and rated it 0% citing “AR 635-50 appendix B-15(Zero percent ratings and minimum ratings) as symptoms do not meet VASRD criteria for a higher rating.” The VA applied code 5237 and continued its 20% rating previously granted based on range-of-motion (ROM) measurements contained in a previous C&P exam (dated 20 April 2004). The Board consensus was that the current C&P exam performed 6 months after separation is the most complete and probative exam for rating the disability caused by the CI’s LBP at the time of separation. The VASRD rating guidelines in effect at the time of separation utilize ROM measurements and the general rating formula for diseases and injuries of the spine to assign the proper disability rating. The C&P exam documented a thoracolumbar spine forward flexion of 90 degrees which is normal IAW VASRD §4.71a. There was no documentation of localized tenderness, guarding, muscle spasm, abnormal spinal contour or, vertebral body fracture with loss of 50% or more of the height that, if present, would justify a 10% rating. Additionally, there was no weakness, pain, fatigability, loss of coordination, or loss of joint excursion upon repetitive motion testing. The VASRD principle §4.31, A no-percent rating, states that “in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.” At the time of separation, the CI’s LBP did not manifest any ratable criteria under any VASRD code. Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board consensus was that a disability rating of 0% for the chronic low back pain condition was appropriately adjudicated by the PEB in this case and therefore, no additional disability rating is recommended.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that PFS, PTSD and OSA were not unfitting. 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 PFS and PTSD conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards. Both were reviewed and considered by the Board. There was no performance based evidence from the record that either of these conditions 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 these contended conditions.

Sleep Apnea. Sleep apnea was profiled. The PEB indicated that the OSA “has responded to CPAP which should be reasonably available to a Soldier of his grade/MOS in a mature theater.” The C&P exam contained the following statement, “Following CPAP with titration, the veteran did well and maintains a CPAP machine at this time. He was also improved by having tonsillectomy and adenoidectomy.” Routinely, OSA is not considered unfitting solely on the basis of field and operational impediments to the use of CPAP. There is little evidence in this case of any unfitting impairments from the OSA (treated with surgery and CPAP); therefore, the PEB’s stated fitness adjudication for OSA was reasonable. All evidence considered; there is not a preponderance of evidence that would support the recharacterization of the PEB’s not unfitting adjudication for the OSA 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 AR 635-50 for rating chronic LBP was operant in this case and the condition was adjudicated independently of that regulation by the Board. In the matter of the asthma condition, the Board unanimously recommends a disability rating of 10%, coded 6602 IAW VASRD §4.97. In the matter of the chronic LBP condition, the Board, by a 2:1 vote, recommends no change in the PEB adjudication. The single voter for dissent (who recommended a 10% rating) did not elect to submit a minority opinion. In the matter of the contended OSA, right knee PFS, PTSD, congestive heart failure and benign prostatic hypertrophy 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Asthma
 6602 10%
Lumbosacral Strain
 5299-5237 0%
Obstructive Sleep Apnea
 Not Unfitting
Patellofemoral Syndrome, Right Knee
 Not Unfitting
Post-Traumatic Stress Disorder
 Not Unfitting
Congestive Heart Failure
 Not Unfitting
Benign Prostatic Hypertrophy
 Not Unfitting
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121009, 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 AR20130011453 (PD201201802)

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

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