RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00785		
BRANCH OF SERVICE:  Army	Separation Date:  20071231

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Quartermaster and Chemical Equipment Repairer, medically separated for “bilateral spondylosis, rated analogous to lumbosacral strain,” with a disability rating of 20%.  

CI CONTENTION:  The CI contends that he was unfairly rated due to him protesting the rating. He contends his back condition and a hearing loss condition.  The 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 – 20071002	VARD - 20080312	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Spondylosis, Rated Analogous to Lumbosacral Strain	5299-5237	20%	Spondylosis at L5 with Anterior Subluxation at L5-S1	5237	20%	20080103	
Hearing Loss	Not Unfitting	Hearing Loss, Left Ear	6100	0%	20080104	
		Tinnitus, Left Ear	6260	10%		
First Degree Frostbite, Fingers of Both Hands	Not Unfitting	Frostbite Residuals, Left Hand	7122	10%	20080115	
		Frostbite Residuals, Right Hand	7122	10%		
Asthma 	Not Unfitting	Reactive Airway Disease to Include Asthma	6602	10%	20080103	
Tendon Injury, Fifth Finger, Left Hand	Not Unfitting	Mallet Finger Deformity, Left Little Finger	5199-5156	0%		
Recurrent Ankle Sprain, Bilateral	Not Unfitting	Achilles Tendonitis, Left Lower Extremity	5271-5024	10%		
		Achilles Tendonitis, Right Lower Extremity	5271-5024	10%		
Migraine Headaches	Not Unfitting 
	No VA Placement	
Heart Murmur			
Multiple Joint Pain and Stiffness Secondary to Trauma and Overuse			
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	
ANALYSIS SUMMARY:  

Bilateral Spondylosis.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 2004.  The CI denied any specific injury or trauma.  Radiographic studies (MRI’s and X-rays) on several occasions (2005-2007) showed only spondylolysis (weakness or stress fracture in the boney bridge that connects the upper with the lower facet joints of the vertebrae) at L5-S1 bilaterally, with “slight” (grade 1/4) slippage of L5 vertebra on S1, without evidence of spinal canal stenosis.  An orthopedic evaluation on 5 December 2006, the assessment was the spondylolysis was a congenital spinal anomaly and the surgeon indicated that physical therapy (PT), rest, or surgery were the only treatment options for the condition and the CI declined surgery at the time.  At an orthopedic follow-up visit on 5 April 2007, the CI reported LBP aggravated by movement that occasionally radiated to the right or left knee and the CI was referred to a pain specialist.  At the time of the pain clinic appointment on 25 June 2007, the CI reported no benefit from a recent nerve block.  Electrodiagnostic studies on 8 August 2007 provided no evidence of lumbar radiculopathy.  Despite treatment, 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 an MEB.  At the MEB NARSUM examination on 11 May 2007, 8 months prior to separation, the CI reported complaints of an inability to bend, stoop, push, pull, lift, or carry objects at work and at home.  The physical examination findings are summarized in the chart below.  The PT examination on 12 September 2007, 4 months prior to separation, noted complaints of sharp pain located over both lumbar regions.  Goniometric range-of-motion (ROM) evaluations and other examination findings are summarized in the chart below.  The examiner noted inconsistent examination findings regarding strength testing and pain reported with examination maneuvers not expected to elicit pain based on the known pathology.  

At the VA Compensation and Pension (C&P) examination performed approximately 4 days after separation, the CI reported constant non-radiating LBP which prevented him from sitting straight and caused him to shift positions.  The pain was aggravated by prolonged sitting, standing, lifting, and driving.  The CI reported no incapacitating episodes or flare-ups due to the back condition.  Lower extremity strength, sensation, and reflexes were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under an analogous 5237 code (Lumbosacral or cervical strain, citing pain limited flexion.  The VA also assigned a 20% rating using the 5237 code based on the VA C&P examination 4 days after separation, citing limitation flexion.  The Board noted that in this case the C&P examination a few days after separation, was the most proximate examination to the date of separation and provides support for a 20% rating of the thoracolumbar back condition according to VASRD 4.71a.  The Board next considered the MEB PT ROM, which supports a 40% rating.  However, members noted that the physical therapist indicated discrepancies during the examination which decreased the Board’s confidence in the validity of the quantitative ROM noted at the examination.  The Board concluded that the C&P examination was the most probative examination for its rating recommendation for the back condition at the time of separation and most clearly represented the CI’s physical condition at the time of separation and therefore agreed that the disability due to the back condition at the time of separation was more closely approximated by the 20% rating criteria.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes.  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.  

Although the CI reported radiating pain, there was no evidence of functional impairment with a direct impact on fitness that could be considered separately unfitting; electrodiagnostic studies showed no evidence of radiculopathy; and, by the time of the C&P exam, the CI reported localized LBP, without radiation.  Moreover, radiating pain from the back condition 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 Board concluded that additional disability rating was not justified on this basis.  

Contended PEB Conditions.  The contended condition of hearing loss was adjudicated as not unfitting by the PEB.  The Board’s first charge with respect to this condition was an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is preponderance of the evidence but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Hearing Loss:  According to the NARSUM dated 11 May 2007, the MEB NARSUM examiner indicated that the CI did not meet retention standards due to his hearing loss and that the commander agreed.  However, the commander’s statement dated 12 April 2007 implicated only the back condition as impairing the CI’s duty performance.  According to the STR and the MEB audiology addendum dated 13 July 2007, the CI had multiple ear conditions and surgeries and was given an H2 profile.  An evaluation by the otolaryngologist (ear, nose, and throat specialist) dated 7 June 2007 indicated that the CI had a small tympanic membrane perforation remaining after a surgery for TM repair.  Since the CI was due to separate shortly, he opted for a hearing aid, though additional surgery was offered.  

The audiology addendum indicated that following surgery to repair the tympanic membrane, hearing test results were variable and several evaluations noted conflicting findings which raised doubt as to the validity of the studies.  Based on the results of the audiology examination the CI “would be deployable in his MOS” provided an otolaryngology specialist examined the CI and concurred.  A permanent P2H2 profile dated 15 June 2006 indicated the CI should use hearing protection around loud noises; a profile dated 27 April 2007 was P3L3H1 and did not notate the limitations due to hearing loss; and, the final profile dated 20 August 2007 was again P3L3H2.  A profile designated “2,” indicates a condition which requires some limitations, but is not in all cases disqualifying for continued military service.  There was no indication from the record that hearing loss 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 hearing loss conditions; and, therefore, no additional disability rating can be 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 hearing loss condition, the Board unanimously recommends no change from the PEB determination 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 recharacterization of the CI’s disability and separation determination.   

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140214, 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, AR20160006026 (PD201400785)

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