RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00781
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070310

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Infantryman, medically separated for “chronic back pain with a history of a herniated disc…,” with a disability rating of 10%.  

CI CONTENTION:  The CI contends his adjustment disorder adjudicated by the service should have been posttraumatic stress disorder (PTSD).  The CI’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 Physical Evaluation Board (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 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 - 20070124	VARD – 20080618	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain with a History of a Herniated Disc 	5237	10%	Degenerative Disc Disease of the Lumbar Spine with Radiation to the Right Testicle Area and Right Lower Extremity	5237-5243	10%	STR	
Adjustment Disorder with Anxiety	Not Unfitting	Adjustment Disorder with Anxiety	9413	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Back Pain with a History of a Herniated Disc.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain and right hip and groin/testicular pain condition began in October 2002 after recovering from a right ankle (lower leg) fracture sustained in a parachute landing in March 2002.  The back pain was exacerbated during deployment in February 2005 and he was medically evacuated.  Diagnostic imaging in November 2005 showed a disk protrusion at L5-S1 which impinged on the left nerve root and specialist evaluation recommended non-surgical treatment and an MEB.  Despite treatment, the back and radiating pain condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “lumbago,” “herniated nucleus pulposus,” “lumbar degenerative disk disease,” and “testicle pain” for PEB adjudication.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 16 November 2006, 5 months prior to separation, the CI reported lower back pain, right hip and testicle pain;  numbness on the right leg, tingling of both legs and giving way.  Exam documented use of a cane with a slight limp, tender left sacroiliac joint, and a positive left straight leg test (SLR - for radiating symptoms).  

At the NASUM examination, 3 days after the MEB examination, the CI had complaints of infrequent right foot tingling (with prolonged sitting/standing), intermittent numbness and tingling of the left thigh and 2-3 episodes of bilateral leg numbness and feeling that they would give way, and pain in the right hip and groin.  Pain was worse with activity.  The examiner summarized a negative urology evaluation for any etiology of the testicular/groin pain, and an episode of numbness and weakness of the legs (paraplegia) resulting in a 6-day hospitalization in August 2006 with full recovery from symptoms.  Diagnostic imaging was unchanged and there was no indication for surgery.  Physical exam showed a normal gait with the right leg 1cm shorter than the left.  There was normal heel and toe walking with no muscle atrophy.  There was painful range of motion (ROM) of the thoracolumbar spine.  There was back and sacroiliac tenderness as well as right testicle tenderness.  Straight leg raise (SLR) testing was negative for radiating symptoms.  Treatment note from the orthopedic surgeon author of the NARSUM noted the CI was walking with a cane and had pain-limited back forward flexion to 80 degrees (normal 90), intact strength and reflexes, and a positive right SLR causing right lower back and tight iliac area (groin) pain.  ROM of the thoracolumbar spine was forward flexion to 75 degrees (normal 90) and combined ROM 190 degrees (normal 240).  

There was no VA Compensation and Pension (C&P) examination in evidence proximate to separation and the initial VARD indicated no VA or post-separation exam was received.  The VA examination from 20 October 2008, 19 months after separation was summarized in the VARD dated March 2009.  That exam showed forward flexion to 45 degrees (normal 90) with lateral flexion 20 degrees bilaterally without other ROM measurements or indication of repetition.  The examiner also noted complaints of tingling and hyperesthesia over the right ankle and great toe and sharp pain and tingling of the posterior calf with heavy landing of the heel, which had worsened over time.  X-rays from September 2008 showed no appreciable structural bone injuries or traumatic type injuries and the vertebrae and disc spaces were normal.  The exam also noted complaints of right hip radiculopathy with right hip pain.  Examination indicated pain-limited right hip external rotation to 30 degrees (normal 45) with X-rays showing irregularity of the acetabular roof without sacroiliac abnormalities.  

The Board directed attention to its rating recommendation based on the above evidence.  The Formal PEB assigned a 10% rating under the 5237 code (lumbosacral strain), citing tenderness and passive motion limited by pain which was upheld by the US Army Physical Disability Agency (USAPDA).  The VA also assigned a 10% rating using the 5237-5243 code (lumbosacral strain - degenerative arthritis of the spine) based on the STR, citing the VASRD 10% ROM criteria.  The VA increased their rating to 20% based on the ROM noted on the examination 19 months after separation and also awarded a 10% rating coded 8526 (paralysis of the anterior crural nerve) for radiculopathy of the right hip with chronic right hip pain.  

The Board adjudged that the MEB examination had the highest probative value for rating at separation given the remoteness of the VA examination.  The Board deliberated if the single PEB rating for the four MEB conditions of “lumbago,” “herniated nucleus pulposus,” “lumbar degenerative disk disease,” and “testicle pain” was appropriate or if separate ratings for any of the conditions was warranted.  The first three MEB conditions are clearly encompassed under the general rating formula for the spine and cannot be separately rated.  The record clearly indicated that the testicular pain had no genitourinary system cause for pain, was most likely radiating pain, and was therefore also appropriately considered under the single unfitting spine rating.  

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were not incapacitating episodes requiring physician-prescribed bed rest of at least 2 weeks to warrant a higher rating under the alternate VASRD formula (for IVDS).  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain, and there were symptoms of radiating pain and reported intermittent paresthesia/numbness of the right (rarely left) leg documented in the treatment records.  Various exams reported gait as normal or with a cane/limp; however, examinations indicated normal strength and reflexes and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  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 pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that adjustment disorder with anxiety was not unfitting.  The adjustment disorder is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting.  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 the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended adjustment disorder with anxiety condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20140205, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXXXX AR20160009859 (PD201400781)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (000 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