RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00342
BRANCH OF SERVICE:  Army	BOARD DATE:  20150324
SEPARATION DATE:  20071215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Tracked Vehicle Mechanic) medically separated for a back condition.  The condition 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 L3 profile and referred for a Medical Evaluation Board (MEB).  Chronic lower back pain due to herniated disc L5-S1, status post discectomy, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded asthma, hypertension, allergic rhinitis and hyperlipidemia as meeting retention standards.  The Informal PEB adjudicated chronic low back pain condition as unfitting, rated 10% application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The discrepancies between the Military rating and Veterans rating are significantly different.  The Military rated member at 10% whereas the Veterans rated member at 80% with payment at 100%.  Member was pressured to sign disability rating of 10% under perceived threat of receiving 0%.”

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 Veterans Affairs Schedule for Rating Disabilities (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:

Service IPEB – Dated 20070927	VA* (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Lower Back Pain...	5241	10%	Status-Post Right L5 Laminectomy	5237	40%	20080225	
			Radiculopathy, R Lower Extremity	8520	10%	20080225	
Asthma	Not Unfitting	Asthma	6602	10%	20080225	
Hypertension	Not Unfitting	Hypertension	7101	10%	20080225	
Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	0%	20080225	
Hyperlipidemia	Not Unfitting	Hyperlipidemia	7599-7541	Non-Compensable	
Other x 0 (Not in Scope)	Other x 6 (Not in Scope)	
Rating:  10%	Combined:  80%	
*Derived from VA Rating Decision (VARD) dated 20080502 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The narrative summary (NARSUM) examination, corroborated by the service treatment record (STR), documents an onset of back pain with right lower extremity (RLE) radiation following a lifting injury in December 2005.  Symptoms persisted and worsened, and imaging (MRI) revealed bi-level degenerative disc disease (L4-S1) with bulging and right nerve root encroachment at L5/S1.  Surgical intervention (L5 laminectomy/discectomy) ensued in May 2006, and symptoms improved.  The CI was deployed to Iraq in November 2006, however, and was soon medically evacuated for a recurrence of pain and RLE radicular symptoms.  Conservative measures provided inadequate relief and neurosurgery opined that further surgery was not indicated, resulting in MEB referral.  There are various STR entries documenting normal RLE strength and neurological findings, and none to the contrary.  There are various entries documenting grossly normal lumbar range-of-motion (ROM), and none noting significant limitations.  There is one entry noting abnormal gait (no other entry confirming or refuting gait disturbance), and no entries documenting abnormal spinal contour.  There is no STR documentation of incapacitating episodes.

A neurosurgical consultation was obtained on 6 June 2007 (6 months prior to separation), and was treated as an addendum to the NARSUM.  That documented “50%” improvement (pain still rated 5/10) and “occasional radicular symptoms [right gluteal]” which were “aggravated by prolonged sitting and increased activity.”  The physical exam noted a normal gait, tenderness without spasm, and painful motion with flexion and extension (no comment regarding any gross ROM limitation).  A detailed neurological exam recorded normal strength of all lower extremity muscle groups, normal sensory findings, and normal reflexes.

The NARSUM on 26 July 2007, 5 months prior to separation documented constant pain (no mention of radicular symptoms) rated 2/10 and exacerbations to 6/10 “with his normal activities.”  The NARSUM referenced the above neurosurgical exam with an independent notation of normal reflexes and “good” lower extremity strength.  The recorded ROM measurements were 80 degrees flexion (normal 90 degrees), 30 degrees extension (normal), and 30 degrees of right and left rotation (normal).  Neither MEB examiner commented on spinal contour.

A VA Compensation and Pension (C&P) exam was conducted on 25 February 2008 (2 months after separation); and, documented “Currently, he has constant back pain, worse with doing any lifting or bending.  The pain no longer radiates down his right leg [intermittent sensory symptoms of the right foot were noted].”  The examiner did not note any interim injury or other clinical exacerbation since separation.  The VA physical exam recorded a “slight limp favoring the right leg” and “loss of curvature of the thoracic spine ... [with] ... muscle spasms when moving the back”, but no tenderness.  The VA ROM measurements were flexion to 30 degrees “before he had sufficient pain to inhibit any further flexion,” but normal or near normal ROM in all other planes (extension 20 degrees, combined ROM 170 degrees [normal 240]).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s code 5241 (spinal fusion) does not reflect the diagnosis in this case (perhaps typographical); but, that does not impinge on rating, and the 10% determination is consistent with VASRD §4.71a criteria for the MEB evidence and ROM.  The VA’s 40% rating under 5237 (lumbosacral strain [again, not diagnostically accurate]) was premised on the C&P flexion of 30 degrees which is the threshold for the higher rating.  There is a large disparity between the MEB and C&P exams with obvious implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration.  It is noted that over the year-long interval between surgery and separation, the STR reflects a stable and improving course (albeit insufficient for retention); and, there is no indication of the severe ROM impairment reflected by the C&P evidence.  There is no ready clinical explanation for the after separation deterioration in ROM, or for why flexion was the only plane of motion significantly affected.  Although it was argued that the VA ROM measurements were the only complete set of ROM measurements that was fully compliant with VASRD §4.46 (accurate measurement), members agreed that a recommendation for a 40% rating was not adequately supported solely by the flexion measurement (just meeting the rating threshold, and limited by subjective pain) at the time of the VA exam.

The Board next considered whether the abnormal gait and/or abnormal spinal contour (each a 20% criterion under §4.71a) documented by the C&P examiner was adequate support for a 20% recommendation.  It was noted, however, that the spasm and lumbar straightening documented by the VA examiner appears to represent an isolated occasion as judged by the total evidence.  Although the STR evidence does not exclude the presence of persistent gait disturbance, the documentation of a normal gait by the MEB neurosurgeon is fairly convincing that there was not a persistent gait disturbance at separation.  In line with the probative value conclusion regarding the ROM disparity between the MEB and C&P exams, members agreed that the C&P findings of gait and contour disturbance were not sufficiently corroborated by the total evidence to support a 20% recommendation on this basis.

Members finally considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated sciatic radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was no sensory component in this case with functional implications, and normal motor strength was documented in multiple exams.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, members agreed that a recommendation for an additional rating could not be supported on this basis.  There was no evidence for incapacitating episodes that would support a higher rating under that formula.  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 of the lumbar spine condition.

Contended Conditions (Asthma, Hypertension, Allergic Rhinitis, Hyperlipidemia).  The Board’s main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they 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 clinical course and status of the listed conditions are summarized by the following excerpt from the NARSUM.
The patient was diagnosed with hypertension and took medication for a short while, but has self discontinued the medication.  He has chronic seasonal allergies and takes decongestants and nasal steroids with relief of these symptoms.  He was diagnosed with asthma recently and currently uses a bronchodilator inhaler approximately three times a week.
Hyperlipidemia, as an asymptomatic laboratory finding, is clearly not unfitting; nor is it a ratable condition.  The asthma condition was profiled P2 5 months prior to separation, and is arguably subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); thereby not unfitting even if unfitting impairment at separation were conceded.  A P2 profile is not routinely associated with unfitting impairment, and does not mandate MEB referral IAW AR 40-501.  None of these conditions manifested any significant clinical acuity at separation; none were implicated in the commander’s statement; none were profiled (other than the P2 for asthma as explained above); and, all were judged to meet retention standards.

All members agreed that there was no performance based evidence suggesting that any of these conditions significantly interfered with 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 any of them; thus, none can be recommended for an additional disability 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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended asthma, hypertension, allergic rhinitis, and hyperlipidemia 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 20140107, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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, AR20150013233 (PD201400342)

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						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA