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AF | PDBR | CY2013 | PD-2013-02428

Original file (PD-2013-02428.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX CASE: PD-2013-02428
BRANCH OF SERVICE: Army BOARD DATE: 20140730

SEPARATION DATE: 20051221

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13D10/Computer Operator) medically separated for a back condition. The back 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 P3/L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “lumbar disk degeneration,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition (sleep apnea). The Informal PEB adjudicated “chronic low back pain s/p L4-5 fusion w/o neurologic deficit” as unfitting rated at 10%. The PEB adjudicated the sleep apnea as not unfitting. The CI made no appeals and was medically separated.

CI CONTENTION: “I believe the rating should be changed based on my sleep apnea was not factored, as well as my mental conditions. My sleep apnea is still severe obstructed and ongoing treatment for bipolar and depression. As a result of these conditions, I am still undergoing treatment. As well as my lumbar spine worsening, despite physical therapy. This condition may require further surgery to get any relief. I don’t believe that all of my conditions were considered, and apnea should have been a consideration in my disability percentage.”

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 rating for the unfitting back condition is addressed below, along with the sleep apnea. The contended bipolar and depression conditions are not 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 :

Service IPEB – Dated 20051201	VA - (4 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Low Back Pain	5241	10%	S/P Lumbar Spine L4-5 Fusion	5238-5237	10%	20060329
Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20060323
Other x 0 (Not in Scope)	Other x 11	20060323
Combined: 10%	Combined: 100%

Derived from VA Rating Decision (VA RD ) dated 200 60524 ( most proximate to date of separation ).

ANALYSIS SUMMARY: The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden him but notes the military Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

Chronic Low Back Pain Condition. The range-of-motion (ROM) evaluations and examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM (Degrees)	PT ~3 Mo. Pre-Sep (20050913)	MEB ~ 2 Mo. Pre-Sep (2005 1 0 24 )	VA C&P ~4 Mo. Post-Sep (20060329)
Flexion (90 Normal)	75	FROM	45
Extension (30)	30		15
R Lat Flexion (30)	30		10
L Lat Flexion (30)	30 ( 35 ) )		10
R Rotation (30)	30 ( 55 )		30
L Rotation (30)	30 ( 5 0)		30
Combined (240)	225	-	140
Comment	(actual) W ith pain at end range	Full range of motion without pain or discomfort Neurologically intact	Some tenderness right and left paralumbar muscles. No muscle spasm. Some pain at terminal degrees. DTR 1/4
§4.71a Rating	10%	0%	2 0%

The service treatment record indicated the CI had low back pain (LBP) in 2003 without injury . His chronic low pain was marked by intermittent bouts of numbness, decreased sensations in strength in his lower extremities and “seat region.” He denied any loss of bowel or bladder function. A magnetic resonance imaging (MRI) of the lower back dated 16 December 2004 , revealed a herniated disk at L4-L5 , which mildly impinged the exiting right L4 nerve root . Correc tive surgery consisting of a L4-L5 fusion was performed on 26 April 2005 . Initial recovery was excellent, but the CI subsequently felt the LBP was getting worse and reported new weakness and decreased sensation in the back and legs. However, the n eurosurgeon had no “concerns for acute worsening condition. ” The CI was discharged from neurosurgical care with the recommendation for conservative care and limitations that would prevent him from continuing his military career. The MEB physical therapy range-of- motion (ROM) examination dated 13 September 2005 is recorded in the chart. There was pain at end range when the physical therapist applied additional pressure (“overpressure”). At the MEB exam ination dated 22 September 2005, the CI reported constant lower back pain with numbness and tingling in the legs. The MEB narrative summary (NARSUM) dated 24 October 2005 note d persistent back pain limiting performance of strenuous military duties (including wear ing body armor required to perform in the field or in a deployed status ) . On examination, the CI demonstrated full ROM of his l umbar spine without pain or discomfort. He was neurologically intact. He was issued a L3 profile for chronic low back pain on 24 October 2005. His restrictions included not being able to ca r ry and fire an individual assigned weapon, move a fighting load, lift more than 30 pounds , or perform Army ’s physical fitness training except swimming and biking.

At the VA C ompensation and P ension (C&P) examination on 23 March 2006, 4 months after separation ; the CI reported his back hurt daily, average 7/10. Pain radiate d to both lower extremities posterior to the knees with numbness and tingling in both legs and feet. Maximum s itting and standing times were 45 minutes and 1 hour respectively. On examination, his g ait was normal . Straight leg raises was negative for signs of radiculopathy ; muscle strength testing and sens ation to light touch of the lower extremities was normal. There was no weakness, fatigability or incoordination noted. The range of motion examination is recorded in the chart. X-rays showed narrowing of L4-L5 and L5-S1 disc spaces posteriorly. Electro-diagnostic studies were negative for evidence of radiculopathy.

The Board directs attention to its rating recommendation based on the above evidence. The IPEB rated the chronic low back pain status post L4-5 fusion without neurologic deficit at 10% using code 5241 citing ROM limited by pain without spasm. The VA rated the back condition (status post lumbar spine L4 to L5 fusion) at 10% (coded 5238-5241; spinal stenosis - spinal fusion) citing limitation of motion. The Board noted that the VA examination 4 months post separation indicated a forward flexion of 45 degrees which supports a 20% rating IAW VASRD §4.71a (forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees). However, ROM values reported by the VA examiner approximately 4 months after separation are significantly worse than those reported by the MEB, 2 months prior to separation, or the physical therapy examiner, 3 months prior to separation. But there is no record of recurrent injury or other development to explain the more marked impairment reflected by the VA measurements. While ROM limitations may have progressed over time, there is no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements. The Board also considered rating the back condition using the VASRD alternate formula based on incapacitating episodes due to intervertebral disc syndrome, however there were not documented episodes of incapacitation (requiring bed rest prescribed by a physician) that would attain a minimum rating. There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating. 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 chronic low back pain condition.

Contended PEB Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that sleep apnea was not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence. The sleep apnea, confirmed by a pulmonologist, was profiled with the notation that the CI “must have CPAP (continuous positive airway pressure) machine and reliable electrical source available nightly.” However, the limitations and restrictions in his profile only related to his low back pain condition. The Medical Board addendum dated 15 November 2005, 5 weeks prior to separation indicated that within 2 months of starting the CPAP treatment, 50% of his daytime hypersomnolence had remitted” and his assessed impairment was mild. Sleep apnea was not explicitly implicated in the commander’s statement, which indicated the CI could “perform the technical duties,” but he could not “perform the physical aspects of his daily duties.” The sleep apnea was judged to fail retention standards by the MEB IAW AR 40-501, para 3-41e (1 & 2); however the PEB noted “there is no evidence that this condition impacts his performance.” The Board also noted that the VA C&P examination, 3 months after separation indicated that according to the CI the “CPAP treatment had essentially eliminated the symptoms associated with [the] sleep apnea.” The sleep apnea condition was reviewed and considered by the Board. There was no performance based evidence from the record that the sleep apnea condition significantly interfered with satisfactory duty performance (including sedentary technical duties). The Board noted that sleep apnea is not routinely considered unfitting solely on the basis of field and operational impediments to the use of CPAP. 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 sleep apnea contended condition 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. In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended 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.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131122, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX

President

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 XXXXXXXXXXXXXXX, AR20150004331 (PD201302428)

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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR

( ) DVA

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AF | PDBR | CY2013 | PD-2013-02428

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