RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:   XXXXXXXXXXXXXX	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100354 	SEPARATION DATE:  20071203
BOARD DATE:  20120117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92Y, Unit Supply Specialist), medically separated for spinal fusion L4-5.  The CI developed back pain during an Iraq deployment in October 2005 while lifting crates of ammunition onto a five-ton truck.  He was treated in theater with non-steroidal anti-inflammatory medications, physical therapy (PT) and epidural steroids, without resolution of his symptoms.  After redeployment of his unit, the CI underwent an L4-L5 disk fusion in May 2007.  Although he had significant improvement in his symptoms after surgery, the CI did not respond adequately to perform within his Military Occupational Specialty (MOS) or meet physical fitness standards.  He was issued a permanent L3/S2 profile and underwent a Medical Evaluation Board (MEB).  The L4-5 intervertebral disk disease, status post (s/p) fusion condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  Three other conditions, as identified in the rating chart below, were forwarded on the MEB submission as medically acceptable conditions.  The PEB adjudicated the spinal fusion L4-5 condition as unfitting, rated 10% with application of the Veterans Administration Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated with a 10% combined disability rating.

CI CONTENTION:  “Conditions have gotten increasingly worse.  Along with hearing & PTSD (posttraumatic stress disorder) along with constant neck problems.”  

RATING COMPARISON:  

Service IPEB – Dated 20071003	VA (3 Mo. After Separation) – All Effective Date 20071204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion L4-5	5241	10%	Lumbar DDD S/P L5 Fusion…	5242	10%	20080307	
Chronic PTSD	Not Unfitting	PTSD 	9411	50%	20080314	
Left Ankle Arthropathy … 	Not Unfitting	Ankle, Limitation of Motion …	5271	10%	19970328	
Hypercholesterolemia	Not Unfitting	No VA Entry	
↓No Additional MEB/PEB Entries↓	Radial Nerve, Inflammation …	8614	20%	19971208	
	Cervical Strain and DDD	5242	10%	20080515	
	Tinnitus	6260	10%	20080307	
	0% x 1/Not Service Connected x5*	20080515	
Combined:  10%	Combined:  70%*	
* VA added 8520, L & R leg sensory deficit/numbness at 10% each; effective 20100730 (combined 80%)  

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  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.  The DES has neither the role nor the authority to compensate Service 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 (DVA), operating under a different set of laws (Title 38, United States Code).  The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.  The Board also acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service connected by the DVA).  While the DES 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 DVA, however, is empowered to compensate 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. 

Spinal Fusion L4-5 Condition.  Service treatment records (STR) dating back to 2006 document complaints of low back pain radiating to the right hip and thigh associated with numbness in the right leg and foot.  A 2006 magnetic resonance image diagnosed a broad based disc bulge at L4/5 associated with a posterior annular tear and moderate to severe right neuroforaminal narrowing.  Definitive treatment was delayed due to operational concerns which precluded the CI’s early evacuation from theater.  Following redeployment of his unit, the CI underwent an L4/5 fusion in May 2007.  Post-operative neurosurgery clinic notes documented significant improvement in the CI’s pain symptoms; however they noted tenderness of the right and left paraspinous musculature, persistent right lower extremity numbness in the L5 distribution and loss of the right patellar reflex.  Follow-up lumbar spine computed tomography (CT) scans confirmed progressive bony fusion at the L4-L5 intervertebral space and intact spinal fixation hardware.  The study also documented significant multi-level degenerative changes of the spine and Grade I spondylolisthesis at L4-L5.  Despite the CI’s improved condition, the commander’s statement commented that the CI was unable to wear his personal protective equipment, operate military vehicles or lift moderate to heavy loads in and out of vehicles.  Additionally, he had been unable to participate in field training or take an Army physical fitness test.

There were three goniometric range of motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation.  These were the PT evaluation, the MEB narrative summary and the VA Compensation and Pension (C&P) examination.  The exam findings are summarized in the chart that follows.

Goniometric ROM - Thoracolumbar	PT ~ 4 Mo. Pre-Sep	MEB ~ 3 Mo. Pre-Sep	VA C&P ~ 3 Mo. After-Sep	
Flex (0-90)	0-70⁰	0-60⁰	0-90⁰	
Ext (0-30)	0-20⁰	0-15⁰	0-20⁰	
R Lat Flex (0-30)	0-5⁰	0-5⁰	0-20⁰	
L Lat Flex (0-30)	0-5⁰, 0-10⁰,0- 5⁰	0-10⁰	0-20⁰	
R Rotation (0-30)	0-20⁰, 0-25⁰, 0-25⁰	0-20⁰	0-30⁰	
L Rotation (0-30)	0-20⁰, 0-20⁰, 0-25⁰	0-30⁰	0-30⁰	
COMBINED (240)	140⁰	140⁰	210⁰	
Comment:  Surgery ~7 Mo. Pre-Sep	Pain limited right lateral flexion; no spasm, abnormal contour or abnormal gait; Waddell’s stocking sensory loss, skin discomfort on light palpation	Mechanical limitation of flexion; pain on lateral bending; Waddel’s – regional tenderness; No spasm; Neg SLR (see text for neuro eval)	Normal gait and posture; pain flares 3x / wk; Neg SLR; painful ROM; add’l limitation after repetitive motion and lack of endurance due to pain without change in ROM; R. patella reflex absent, Achilles 1/2; R. gluteal decreased lt touch	
§4.71a Rating	10%	20%	10%	
All three exams documented limitation of motion of the lumbar spine, with the MEB and PT exams specifically noting limitation of flexion.  The MEB exam additionally noted mechanical limitation of flexion as well as pain on lateral bending.  The VA exam documented pain throughout ROM and noted that repetitive motion of the thoracolumbar spine resulted in a lack of endurance secondary to pain, without change in ROM.  None of the exams documented abnormal gait, spasm or abnormal contour of the spine.  The VA exam additionally noted decreased light touch sensation in the right gluteal area and decreased right patellar and Achilles reflexes.  The MEB examiner and the physical therapist commented on the presence of Waddell’s signs.  The MEB examiner stated “Waddel signs are positive 1/7 with regional tenderness.”  The physical therapist noted skin discomfort on light palpation and stocking sensory loss in an entire extremity or side of the body as positive Waddel signs.  Neither the MEB nor the PT exam included specifics on these findings, and neither documented a detailed neurologic examination.  With regard to the comment on Waddel’s at the MEB and PT exams, neurosurgery (five months pre-separation) noted numbness and tingling sensation in the bilateral lower extremities in the L5 distribution; and tenderness of the left and right paraspinous muscles; decreased sensory response on the lateral leg and dorsum of the foot (L5) bilaterally; normal gait; knee jerk 1+ on the right; normal motor strength).  Neurosurgery did not attribute these objective findings to Waddel signs.  Additionally, these complaints/findings were all long-standing and well documented in the STR.

The PEB and the VA chose different coding for the condition, with both codes rating based upon the General Rating Formula for Diseases and Injuries of the Spine.  Neither coding is predominant.  The PEB coded for spinal fusion and rated at 10%, noting “mechanically-limited spinal flexion at 70 degrees without tenderness or spasm.”  The VA coded for degenerative arthritis of the spine and rated at 10% for limitation of combined thoracolumbar range of motion to 210 degrees.  The degree of limitation of lumbar spine forward flexion documented at the MEB and PT exams was very similar; however, the few degrees of difference in the documented limitation of back forward flexion results in a different rating.  The 60° of lumbar spine flexion documented at the MEB exam is consistent with the 20% rating’s “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  The 70 degrees of lumbar spine flexion documented at the PT exam meets the 10% rating’s “forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.”  The PEB rated based upon mechanically limited flexion of 70 degrees, apparently combining the mechanical limitation of motion noted in the MEB exam with the less restrictive measurement of lumbar spine flexion obtained from the PT examination.  The VA exam documented no limitation of lumbar spine forward flexion; however, the combined lumbar spine ROM documented at the VA exam was consistent with the 10% rating criteria’s “combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.”  There was no documentation of physician prescribed bed rest to justify a higher rating based upon incapacitating episodes.  There was no documentation of abnormal gait or abnormal spinal contour to justify a 20% rating based upon severe muscle spasm.

The Board weighed the probative value of the disparate lumbar spine exams.  The MEB and the PT exams, which had similar findings, both took place prior to separation and occurred within four months after surgery.  The VA exam was equally proximate to time of separation, but took place approximately 10 months after surgery.  The more restrictive ROM limitations noted at the service exams may have reflected limitations due to post-operative pain and inflammation.  The NARSUM and VA exams both indicated additional limitations on activities and repeated motion that may be considered IAW VASRD §4.40 (functional loss).  The Board considered that the exams were of equivalent probative value, reflecting different periods of the CI’s post-operative course and post-separation improvement.

The Board additionally considered VASRD §4.7 (the higher of two evaluations) which advises:  “where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.”  The Board opined that the CI’s overall disability picture, based upon the three exams and the STR as well as his lack of endurance, more closely approximates the 20% rating criteria for the lumbar spine.

Finally, the Board noted that there was insufficient evidence of an unfitting or ratable peripheral nerve impairment.  Although the CI did complain of persistent right lower extremity numbness, with objective documentation of decreased sensation in the L5 distribution, Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The sensory component in this case has no functional implications that were reflected in the permanent profile or commander’s statement.  No motor impairment was recorded that can be linked to significant physical impairment.  Post-separation VA exams proximate to separation did not demonstrate significant lower extremity peripheral neuropathy (left and right lower extremity sensory deficit/numbness both not service connected, no diagnosis in VARD 30 December 2008).  The VARD of 18 January 2011 rated each lower extremity at 10% effective 30 July 2010 when a positive electrophysiologic study (EMG/NCV) demonstrated sensory deficit of each lower extremity.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on nerve impairment.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.7 (the higher of two evaluations), and §4.40 (functional loss); the Board recommends a separation rating of 20% for the spinal fusion L4-5 condition, and no unfitting peripheral nerve condition.

Other PEB Conditions.  The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were hypercholesterolemia, left ankle arthropathy, and chronic PTSD.  The diagnosis of hypercholesterolemia is a laboratory abnormality without related duty limitations or ties to fitness.  The CI had a history of left ankle injuries and underwent two prior surgeries on the left ankle (in 1990 and 1996).  Following surgery and PT, the CI regained full function without limitations.  Although the VA assigned a 10% rating for this condition effective 1 March 1997 – 25 February 2005, the CI was later allowed to reenlist with this condition.  The conditions of hypercholesterolemia and left ankle arthropathy were not implicated in the commander’s statement or noted as failing retention standards.  All were reviewed by the action officer and considered by the Board.  There was no indication from the record that any of these conditions significantly interfered with satisfactory performance of MOS duty requirements.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for any of the stated conditions.

The CI was diagnosed with chronic PTSD and depression in 2006.  He was treated with anti-depressant medication and group therapy, and was subsequently placed on an S2 profile.  The MEB examiner noted that the CI’s symptoms of anger and depression were relatively well-controlled during the MEB period.  Mental health notes during the MEB period reflected a stable mental health course without mention of duty limitations or decompensation.  The VA PTSD C&P exam, three months post-separation, documented cannabis abuse for “self medication for pain,” unemployed with difficulty in school, separated from his wife and with significantly worse symptoms than noted pre-separation.  The Global Assessment of Functioning (GAF) was in the range of major impairment in several areas (GAF=35: Service GAF=55-60).  The examiner also diagnosed major depressive disorder and indicated the CI was at risk of “suicide gestures or attempts based on his past history of depression.”  The Board adjudged this as post-separation worsening and not indicative of the CI’s condition during the DES process and pre-separation functioning.  The Board’s threshold for countering DES 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 conditions of chronic PTSD and depression were not implicated in the commander’s statement or noted as failing retention standards.  Both conditions were reviewed by the action officer and considered by the Board.  There was no indication from the record that any of these conditions significantly interfered with satisfactory performance of MOS duty requirements.  After due deliberation, and in consideration of the totality of the evidence, the Board cannot find adequate justification for recommending the chronic PTSD or depression conditions as additionally unfitting for separation rating.

Other Contended Conditions.  The CI’s application asserts that compensable ratings should be considered for hearing loss and neck problems.  Although the CI did complain of hearing loss at the MEB physical, audiometric testing on 20 September 2007 demonstrated normal hearing in both ears.  The VA exam also demonstrated normal pure tone hearing and normal functional speech discrimination in both ears.  This condition was reviewed by the action officer and considered by the Board.  There was no evidence for concluding that hearing loss interfered with duty performance to a degree that could be argued as unfitting.  The condition of neck problems does not appear in the DES file and is not mentioned in the neurosurgical notes or PT notes proximal to separation.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  The Board determined therefore that none of the additional contended conditions were subject to Service disability rating. 

Remaining Conditions.  The condition of radial nerve inflammation noted in the VARD was included in the DES file as left index finger surgery and numbness.  This injury occurred in May of 1995 and it was assigned a 20% rating by the VA from 1 March 1997 – 15 February 2005.  The condition did not prevent the CI from reenlisting in 2005.  Several additional non-acute conditions or medical complaints were also documented.  None of these conditions were significantly clinically or occupationally active during the MEB period, none carried attached profiles, and none were implicated in the commander’s statement.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  Additionally, the condition of tinnitus was noted in the VA rating decision proximal to separation, but was not documented in the DES file.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 spinal fusion (L4-L5) condition, the Board unanimously recommends a permanent service disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the hypercholesterolemia, left ankle arthropathy and chronic PTSD conditions, the Board unanimously recommends no change from the PEB adjudications as not unfitting.  In the matter of the hearing loss and (right index finger) radial nerve inflammation conditions or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Spinal Fusion, L4-5	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record