RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00750
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070426

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, O3, QM General, medically separated for “lumbar pain,” with a disability rating of 20%.  

CI CONTENTION:  The applicant request consideration of all conditions in his application, contending that documentation supports a higher rating than awarded.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 Physical Evaluation Board (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 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 PEB - 20070207	VARD - 20070524	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Pain….	5241	20%	HNP, Status Post Lumbar Fusion	5241	10%	20070322	
Upper Airway Resistance Syndrome w/Restless Leg Syndrome	Not Unfitting	Sleep Apnea Syndrome And Restless Leg Syndrome	6847	50%		
Pain Disorder…		No VA Entry	
Depressive Disorder		Mood Disorder	9435	50%	20070322	
Migraine Headaches		Migraine Headaches	8100	0%		
Right Foot Pain		S/P Bunionectomy, Right Foot	5280	10%		
Hypogonadism		Hypogonadic Hypogonadism with ED and Gynecomastia	7522-7628	0%		
ED Disorder						
Preglaucoma		No VA Entry	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Lumbar Pain.  The record shows that the CI was evaluated by magnetic resonance imaging (MRI) in December 2002 for back pain with radiation down his left leg.  It showed degenerative disc disease (DDD) at L3-4 and L5-S1.  The CI denied any specific injury or trauma.  Conservative treatment with medications, physical therapy (PT), and injections provided incomplete relief.  A L5-S1 spinal fusion was performed in March 2004, but his pain persisted.  He then had a second back surgery at L4-5 (laminectomy, complete discectomy at L4-5 and bone graft) in December 2004.  Despite rehabilitation, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a Medical Evaluation Board (MEB).  A PT note dated 5 October 2005, 19 months before separation and 10 months after the second operation, noted that the CI had desk duty and pain with prolonged sitting or walking over 2 miles.  On examination, he could bend forward to his mid shins (the medical officer opined that is was over 60 degrees) and bend backward (extension) 15 degrees.  An MRI on 9 May 2006 showed a nerve root impingement at L2 and fusion of L3-4, L4-5, and L5-S1.  The MEB examination dated 22 August 2006 documented limited and painful range-of-motion (ROM).  The neurological examination was normal.  A primary care note, for a medication refill, dated 8 September 2006, documented a normal neurological examination and a normal gait and stance.  At the narrative summary (NARSUM) examination performed on 25 September 2006, approximately 7 months prior to separation, the CI reported constant back pain, numbness and tingling in his legs and feet, occasional urinary dribbling, and the use of a cane.  On examination, he rose stiffly from a chair and used a cane to walk.  Spasm of the paraspinal muscles was present.  He had weakness in the left L5 distribution and sensory changes in the left L5-S1 distribution.  His reflexes were normal.  Three weeks later, on 18 October 2006, the CI was evaluated in neurology for a migraine headache.  He reported back pain, but no gait abnormalities.  His neurological examination, including his gait, were detailed and documented as normal.  The CI was then seen in neurology on 8 December 2006, 5 months prior to separation, for evaluation of a post-concussive syndrome.  His motor examination was normal as were the gait, stance, and balance.  At the VA Compensation and Pension (C&P) examination performed on 22 March 2007, approximately a month prior to separation, the CI reported back pain that ranged from a dull ache to a sharp pain below his belt line that radiated to his left leg, aggravated by walking with associated left leg numbness with walking more than 100 yards.  The CI reported between 5 and 10 periods of incapacitation over his military career due to severe back pain.  He also reported that he had to call in sick from his usual duties once per week over the previous 6 months because of recurrent back pain.  

The Board directed its attention to its rating recommendation based on the above evidence.  The Formal PEB assigned a 20% rating coded 5241 (spinal fusion), citing paraspinal muscle spasm and antalgic gait.  The VA assigned a 10% rating, also coded 5241, citing flexion limited to 70 degrees with functional loss of painful motion.  The PT ROM examination approximately 8 months prior to separation supports a 40% rating for forward flexion of the thoracolumbar spine 30 degrees or less.  However, this examination is an outlier of the other ROM values in evidence and is not consistent with the normal gait recorded by a neurologist 3 weeks later.  The Board also considered the fact that the VA examination was the most proximate to separation and agreed that this more clearly represented the CI’s physical condition at the time of separation.  The Board therefore concluded that the VA examination had the highest probative value for rating purposes.  Although the CI reported incapacitating episodes, this was not supported by objective evidence in the service treatment records.  The Board then directed its attention to the rating recommendation of the back condition.  The VA examiner documented painful motion which caused a slightly antalgic gait.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The MEB examination approximately 7 months prior to separation indicated a weakness indicated on the left L5 distribution; however, 2 subsequent examinations by a neurologist and the VA C&P examination were normal other than an absent left heel reflex on the VA examination.  The evidence does not support the presence of an unfitting radiculopathy at separation.  The Board therefore concluded that additional disability rating is not supported.  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 back condition. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended upper airway restrictions with restless leg syndrome, depressive disorder, migraine headache, right foot pain, erectile dysfunction (ED), pre-glaucoma, and hypogonadism 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.  A profile dated 5 April 2005 recommended an MEB and placed the CI on an L3 profile.  A physical therapy note dated 5 October 2005 documented that the CI was in the MEB process.  The commander, on 9 November 2005, noted the physical limitations from running, handle firearms, carrying equipment, and the need for electricity (for treatment of the breathing disorder).  However, it was noted that he could function in-garrison even though he could not deploy.  Of the above conditions, the MEB determined that all met retention standards except for the upper airway syndrome with restless leg syndrome and the pain disorder and depressive disorder.  The treating pulmonologist noted that the CI should be able to avoid excessive daytime sleepiness with continued treatment and could be found fit for duty and deployed within the treatment restrictions (a need for access to electricity).  His impairment was thought to be mild.  The PEB specifically noted that it did not significantly interfere with duty performance.  The pain disorder and depressive disorder were profiled S3, but found to be secondary to the unfitting back condition and not separately unfitting.  The CI did not contend this adjudication in his rebuttal.  Review of the record shows that the CI was first evaluated for a mental health complaint on 7 March 2005, one month prior to referral into the MEB process, when he reported a 2-month history of depression about his multiple physical problems.  He was started on medications, but was very disappointed that he was facing an MEB and depressed about his future.  The last clinical record in evidence for the mental health condition was dated 19 May 2005, 25 months prior to separation.  He was then evaluated for the MEB in psychiatry on 6 July 2006 and issued an S3 profile.  He was noted to have some impact at work in that, a “few times,” his supervisors would need to shake him on the shoulder to get him to focus.  However, the commander did not document problems in garrison from the mental health condition and it was not specifically addressed.  The VA examiner, less than 3 weeks from separation, documented that the CI had a poor mood due to his medical problems and was angry that he was being discharged.  The Board considered the evidence.  While it is clear that the CI was depressed about his medical conditions and pending medical discharge, the record does not support a determination that he was unable to perform his duties due to a mental health condition.  The Board also noted that the CI did not contest the “not unfitting” adjudication (for a mental health condition) by the PEB in the rebuttal he submitted to the PEB.  All were reviewed and considered by the Board.   There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at the time of separation.  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:  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended upper airway restriction with restless leg syndrome, depressive disorder, migraine headache, right foot pain, erectile dysfunction (ED), pre-glaucoma, and hypogonadism 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.  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 20140206, 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 XXXXXXXXXXXXXXXXXX, AR20160005590 (PD201400750)

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: 

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA