RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00392
BRANCH OF SERVICE:  Army	BOARD DATE:  20150408
SEPARATION DATE:  20070721

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Military Police) medically separated for chronic back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent U2/L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “lumbar spondylosis” and “thoracolumbar scoliosis” as medically unacceptable to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions as medically acceptable (see rating chart below) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the referred medically unacceptable conditions as a single condition for rating purposes:  “chronic back pain…without neurologic abnormality” and found this condition unfitting.  The IPEB then found the unfit condition existed prior to service (EPTS) and was not permanently aggravated by service, thereby affording the CI no disability compensation for her unfit condition.  The four medically acceptable conditions as referred were found to be not unfitting by the IPEB.  The CI initially rebutted this finding and found no relief from the IPEB, whereupon she demanded a Formal hearing.  The Formal PEB (FPEB) found the chronic back pain unfit and continued the EPTS finding.  However, the FPEB declared there was not a preponderance of evidence to overcome a presumption of service aggravation and thereby awarded a 10% rating for the unfit chronic back condition.  The remaining conditions were found not unfitting.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “I have continued to receive medical care for my injuries and need an updated disability rating decision.”

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:

FPEB – Dated 20070531	VA* - (~12 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…Without Neurologic Abnormality	5299-5237	10%	Thoracic and Lumbosacral Strain	5237	10%	20080710	
Right Hip Pain	Not Unfitting	Stress Fractures/Bursitis, Right Hip	5252	10%	20080710	
Mild Carpal Tunnel Syndrome	Not Unfitting	Carpal Tunnel Syndrome, Left Hand	8516	10%	20080710	
Left Distal Peroneal Neuropathy	Not Unfitting	Achilles Tendonitis	5284	10%	20080710	
Cervical C2-3 Disk Changes	Not Unfitting	Cervical Strain	5237	10%	20080710	
Other x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20081009 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Back Pain.  The narrative summary (NARSUM) notes that the CI reported back pain (mid and lower) after she recovered from pelvis stress fractures and returned to full duty.  She reported sharp back pain and muscle tightness without any lower extremity (LE) symptoms.  Thoracic (T-spine) X-rays on 26 January 2006 noted moderate scoliosis and other incidental congenital bony abnormalities.  The back pain continued despite conservative treatment and profile limitations.  At a primary care visit on 4 May 2006 the CI reported back pain with a local burning sensation and numbness of the inside of both thighs.  Repeat T-spine X-rays on 4 May 2006 noted no new abnormalities and lumbar spine (L-spine) X-rays noted minimal scoliosis, but were otherwise normal.  At a neurosurgery (NS) evaluation on 8 May 2006 the CI reported pain over both shoulder blades, without referred or radiating pain or numbness, tingling.  The NS exam noted a mildly antalgic gait with “moderately limited” lumbar flexion with mild pain.  Strength, sensation, and reflexes of the LEs were normal and straight leg raise testing was negative.  Thoracic spine MRI on 10 May 2006 noted mild degenerative disc disease and lumbar spine MRI noted a focal disc herniation at L4-5.  At the follow-up NS visit, the assessment of the MRI was that the L4-5 disc bulge was not clinically significant and the thoracic MRI was normal.  The NS exam noted a normal gait.  No surgery was recommended but the surgeon advised continued profile limitations until the symptoms resolved.  A physical therapy (PT) assessment on 7 August 2006 noted intermittent back pain and tingling of the right inner thigh and the left foot.  On exam there was full range-of-motion (ROM) of the thoracolumbar (TL) spine, with no muscle spasm or weakness, and normal reflexes.  The CI was treated with additional PT, but the back pain continued.  A primary care visit on 23 October 2006 noted the CI had been unable to increase activities.  The exam noted tenderness to palpation (TTP) of the T-spine, but full painless range of motion (ROM) of the TL spine, without muscle spasm.  The CI’s posture was normal and LE exam was normal.  The examiner ordered additional blood work to screen for rheumatologic disorders, which were normal.  Electrodiagnostic (EMG) studies of the LEs performed on 16 January 2007 noted a mild, partial, deep peroneal neuropathy on the left, “most likely due to injury of the nerve at or near the anterior tarsal tunnel.”  There was no evidence of radiculopathy in the LEs due to the back condition.  There were no incapacitating episodes due to the back condition documented in the service treatment record (STR).

At the MEB examination on 4 January 2007, 7 months prior to separation, the CI reported mid and lower back pain.  The MEB physical exam noted a mild antalgic gait favoring the right.  There was TTP of the TL spine with spasm of the paravertebral muscles.  There was TTP of the right sacroiliac area to the right hip area.  Thoracolumbar ROM was flexion of 55 degrees (normal 90) with combined ROM of 180 degrees (normal 240).  Physical therapy ROM for the MEB performed on 17 January 2007 was TL flexion of 65 degrees, repeated three times, and combined ROM of 215 degrees.  The therapist noted there was pain and localized tenderness, guarding, or muscle spasm of the lower thoracic and lumbar muscles and beside “abnormal gait” or “abnormal spinal contour” due to muscle spasm or guarding the examiner indicated N/A (not applicable).  The therapist also noted that TL ROM was measured with an inclinometer and not a goniometer as required by the VASRD.

At the VA Compensation and Pension (C&P) examination on 10 July 2008, 12 months after separation, the CI reported mild back pain and that she used a TENS (transcutaneous electrical nerve stimulation) unit three or four times per week.  The CI was noted to be unemployed but reportedly there was no effect on her daily activities due to the back condition.  On exam the examiner noted normal posture and gait.  Thoracolumbar ROM was reported as flexion to 96 degrees, reduced to 65 degrees after repetition, with combined ROM of 230 degrees, reduced to 190 degrees after repetition.  There was no pain with ROM and strength, sensation and reflexes of the LEs were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB and the VA both rated the back condition 10%, the PEB coded 5299-5237(analogous to lumbosacral strain) and the VA used the straight 5237 code.  The Board noted that the FPEB combined the MEB forwarded conditions of the lumbar spine and the thoracolumbar spine and rated as one unfitting condition IAW VASRD rules for rating the spine in effect at the time of separation, which provide a single disability rating for the thoracolumbar spine.  Members agreed that the evidence in record supports the 10% rating and reviewed to see if the evidence in record supported the next higher evaluation of 20%.  Members considered that the findings at the MEB examination noted muscle spasm with a mild antalgic gait and flexion of 55 degrees.  However, four other evaluations noted above, two before and two after the MEB exam, which included the PT evaluation for the MEB 2 weeks after the MEB exam and the after separation C&P exam, were all consistent with a 10% rating based on ROM and the absence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour.  The Board noted that the PT ROM was measured with an inclinometer and specified as TL ROM.  It appears to be consistent with TL ROM and if it was isolated lumbar ROM, it could only understate total TL ROM.  However, the Board considered it a moot issue since the ROM as documented met the 10% rating for TL ROM and no higher.  The Board reviewed to see if coding as 5243 and rating based on incapacitating episodes resulted in a higher evaluation, but there were no incapacitating episodes documented in the STR or at the C&P exam.  The Board also considered if there was evidence of impairment due to a peripheral neuropathy related to the back condition to provide additional disability rating.  However, although the CI reported intermittent inner thigh tingling, there was no evidence of a radiculopathy on the bilateral LE EMG.  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 adjudication for the back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right hip, carpal tunnel syndrome (CTS), left peroneal neuropathy, and “cervical disk changes” conditions were 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.

Right Hip Pain Condition.  The NARSUM notes the CI was diagnosed with stress fractures of the right superior and inferior pubic rami (anterior pelvis) during individual training (AIT) and was placed on profile with crutches.  The stress fractures were identified on bone scan on 28 September 2004.  Pelvis X-rays were performed on 10 January 2005 to monitor healing and there was evidence of healing noted.  The bone scan was repeated on 25 April 2005 and also indicated the stress fractures were healing, but the radiologist noted that that the bone scan may not return to normal for as long as 2 years.  Serial orthopedic evaluations noted a normal exam except for tenderness to palpation over the stress fractures.  The CI improved sufficiently to be returned to duty on 29 August 2005, however, experienced recurrent pain with increased activity.  Orthopedic evaluation on 18 October 2005 again noted a normal exam of the hip with full ROM, except for painful motion and tenderness over the fracture site and repeat hip X-rays noted a healed stress fractures without other abnormality.  The orthopedic specialist noted that the CI was interested in remaining in the military and provided the CI with a permanent L2 profile for run at own pace and distance and no lifting greater than 50 pounds.

At the MEB examination, 7 months prior to separation, the CI reported chronic right hip pain.  The MEB physical exam noted tenderness over the right sacroiliac joint extending to the right hip.  Hip ROM was reported as “0 to 65 degrees, and on the left 0 to 130” degrees, limited by pain [presumably flexion].  PT ROM for the MEB repeated all measurements three times with flexion of 97 degrees (normal 125) and abduction of 37 degrees (normal 45 degrees) and limited adduction that results in the CI being unable to cross her legs.

Carpal Tunnel Syndrome Condition.  The NARSUM notes that the CI noted some difficulty gripping things during training (AIT).  She was moved to a position doing more clerical work and noted symptoms in both hands.  At primary care evaluation on 19 January 2006 the CI reported pain and numbness of both hands.  The exam of the hands, wrists, and fingers was normal with noted normal strength and sensation.  An EMG on 13 February 2006 noted bilateral mild Grade I CTS, which is a grading of CTS based on the EMG evidence.  Grade I CTS is very mild with normal standard tests and only demonstrated with very sensitive tests, in this case abnormal comparative tests of the median nerves with the ulnar, with otherwise normal sensory and motor function noted.  According to the NARSUM the CI was given wrist braces for a month and reported minimal symptoms at the MEB examination.  There was no specific examination for the CTS but wrist ROM noted full wrist dorsiflexion, ulnar deviation, and radial deviation with pain with ROM.

Left Peroneal Neuropathy.  There is no information in the STR regarding the peroneal neuropathy condition other than the EMG of the LEs, performed to evaluate for radiculopathy due to the back condition.  The EMG noted a distal peroneal neuropathy likely due to injury at the level of the tarsal tunnel.  The NARSUM notes that the CI did injure her right foot during basic training with a 4th metatarsal stress fracture, but there are no reported symptoms or treatment of the left foot documented in record.

Cervical Disk Condition.  The NARSUM noted no reported symptoms of the cervical spine or related treatment.  The MEB examination noted tenderness of the lower cervical spine with “some tightness” of the paravertebral muscles.  There were no treatment visits for the neck in the STR.  There were no UE motor or sensory deficits, or abnormal reflexes noted in the STR.  An orthopedic visit for the MEB on 4 January 2007 noted only “neck symptoms” and a normal neck exam.  Cervical spine X-rays were performed as part of the MEB process and noted a congenital variant of the cervical vertebrae and thoracic spine X-rays on 26 January 2005 noted bilateral cervical ribs.

The commander’s statement noted multiple medical conditions which included the TL back condition, right hip condition, and the CTS condition.  The commander noted that the CTS condition was mild and the “back and hip” conditions limited the CI’s ability to perform PT.  However, the CTS condition was given a permanent U2 profile and the hip condition was given a permanent L2 profile in 2005, which the permanent profile specifically noted was being continued as L2.  A condition providing a profile designation of “2” indicates some limitations are required which may not be unfitting for continued military service.  The left peroneal neuropathy, and “cervical disk” conditions were not profiled or implicated in the commander’s statement.  All four contended conditions were reviewed and considered by the Board.  All four conditions were found medically acceptable by the MEB.  The IPEB and FPEB found these four conditions to be not unfitting.  There was no performance based evidence from the record that either the right or left CTS conditions, individually or combined, the right hip, the peroneal neuropathy or the cervical 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 the any of the contended conditions and so no additional disability ratings are 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 matters of the contended right hip, CTS, left peroneal neuropathy, and cervical disk 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, AR20150013226 (PD201400392)

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