RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00791
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Motor Transport Operator, medically separated for “degenerative arthritis of the spine” with a disability rating of 10%.

CI CONTENTION:  The CI requests the board consider all conditions.  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 - 20091130	VARD - 20100322	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Spine	5242	10%	Thoracolumbar Degenerative Disc Disease	5242	10%	20091221	
Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%		
Bilateral Knee Pain		Left Knee Retro-Patellofemoral Syndrome	5260	10%		
		Right Knee Retro-Patellofemoral Syndrome	5024-5260	10%		
Headache Syndrome		Migraine Headaches	8100	0%		
Left Elbow Tendonitis		No VA Placement	
Acne Cystic			
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 70%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Spine.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in 1992 while serving an earlier tour in the U.S. Army, for which he was awarded a 10% disability rating by the VA in 2002.  Exacerbation of the condition occurred while deployed in 2006, but there was no specific injury or trauma.  Radiographic studies (April 2009) showed moderate degenerative changes of the thoracolumbar spine, and degenerative disc disease at L5-S1 with a disc protrusion that contacted the right S1 nerve root.  A minimal thoracic scoliosis was noted on radiographs.  There was no surgical indication.  Despite conservative treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a MEB.  The MEB forwarded “L5-S1 degenerative disk” for PEB adjudication.

An orthopedic evaluation on 29 May 2009 (7 months prior to separation) recorded a complaint of periodic radiation of pain to the left leg more often than the right leg.  Back pain was bothersome “all the time” and caused problems performing day-to-day activities.  The MEB physical therapy (PT) examination on 27 July 2009 showed painful motion, but no guarding or spasm.  Forward thoracolumbar flexion was 65 degrees (normal 90 degrees) and combined range-of-motion (ROM) was 185 degrees; and all measurements were after three repetitions.     

The MEB NARSUM examination on 20 October 2009 (2 months prior to separation), noted a chief complaint of low back pain.  Radiation to the legs was denied.  The pain was completely activity-related and did not encumber activities of daily living.  Physical examination showed a normal gait and no muscle spasm.  Lower extremity neurologic findings were normal.

At the VA Compensation and Pension (C&P) examination on 21 December 2009 (a week before separation), the CI reported continued pain despite treatment.  Physical examination showed thoracolumbar flexion of 90 degrees and combine ROM of 240 degrees.  Painful motion was present.  Mild paraspinal spasm and thoracic scoliosis were reported.  There was no loss of motion after repetitive motion, although the examiner opined that additional loss of flexion to 70 degrees could occur during flare-ups.  Lower extremity neurologic findings were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the degenerative arthritis of the spine condition 10% coded 5242 (degenerative arthritis of the spine), citing limitation of forward flexion as the rationale.  The VA also rated the condition 10% under the same code based on the VA C&P examination a week before separation.  The Board agreed that the PEB’s 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB PT examination.  The Board debated if the mild muscle spasm and mild thoracic scoliosis present at the VA examination was sufficient to warrant the next higher 20% rating (for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour).  However, Board members noted that identical mild thoracic scoliosis was previously documented radiographically (thus a likely stable finding) and that spasm causing abnormal spinal contour was not present on any other exam.  It was concluded that mild spasm was inconsistent with causing an abnormal spinal contour in the context of completely normal ROM.  Therefore, the next higher 20% rating was not warranted on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula, or evidence of ratable peripheral nerve impairment which would provide for additional rating.  

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 degenerative arthritis of the spine condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that sleep apnea, acne cystic, bilateral knee pain, headache syndrome, and left elbow tendonitis 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.  Although sleep apnea was profiled (P2), none of the above conditions were implicated in the commander’s statement and none were judged to fail retention standards.  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.  After due deliberation, and 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 degenerative arthritis of the spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended sleep apnea, acne cystic, bilateral knee pain, headache syndrome, and left elbow tendonitis 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 20140214, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20160007261 (PD201400791)

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