RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00970
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20090408

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a drilling National Guard E-6 (Medic) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Back pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded hearing loss/tinnitus and psoriasis conditions for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic back pain” as unfitting, rated 10%, referencing application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD), but did not adjudicate the remaining two conditions.  The CI non-concurred with the IPEB’s findings, submitted a written appeal and waived a Formal PEB.  The PEB affirmed the original findings and rating. An Administrative Correction PEB was completed to reflect the remaining two conditions were determined to be not unfitting.  The US Army Physical Disability Agency reviewed the case and affirmed the PEB’s findings and rating.  The CI made no further appeal and was medically separated.

CI CONTENTION:  “Chronic back pain.  Hear loss.  Rt Knee and ankle pain.  Unable to work full time as nurse.”

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 condition outside the Board’s defined scope of review (such as the additional right knee and ankle conditions cited in the contention) 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 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 Admin Corr – Dated 20090213	VA* - (~2 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Lumbosacral Spine DDD and DJD	5243-5242	20%	20090616	
			RLE Radiculopathy	8620	10%	20070324	
Hearing Loss/Tinnitus	Not Unfitting	Tinnitus	6260	10%	20070626	
		Bilateral Hearing Loss	6100	0%	20070626	
Other x 1 (Not in Scope)	Other x 3		
Rating:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20090727(most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Lumbar (L4-S1) Degenerative Disc Disease (DDD).  The service treatment record (STR) and MEB narrative summary (NARSUM) documented an injury while stepping off of an airplane when deployed to Iraq in 2006.  Radiographs in October 2006 documented mild degenerative disease of the lumbar spine.  At a VA Compensation and Pension (C&P) exam in March 2007 (25 month pre-separation), the examiner documented a mildly antalgic gait without assistive devices, moderate tenderness of the bilateral paraspinal muscles with mild guarding.  Forward flexion was to 40 degrees with pain.  Radiographic imaging in March 2007 documented degenerative changes at L4-L5 and L5- S1, moderate to severe bilateral nerve canal stenosis at L5-S1, L4-L5 disc herniation causing pressure and displacement of the L5 nerve root.  The records were silent for any documentation of back pain or exams between August 2007 and November 2008.

The MEB NARSUM exam was performed on 19 November 2008 (5 months pre-separation).  The CI reported the ability to walk over 2 miles, but has increased pain with standing 10-15 minutes or becoming more physically active.  The examiner documented no palpable spasms and negative nerve tension testing.  Forward flexion was 70 degrees (normal 90).  There was normal strength, sensation and neurologic testing of the lower extremities bilaterally.  At an orthopedic visit on 19 November 2008 (5 months pre-separation), the CI reported right sided low back pain and stiffness.  The examiner documented no spasm, a normal spinal appearance, and tenderness of the right side.  There was no STR documentation of physician prescribed bed rest for incapacitating events.  On the MEB DD Form 2808, Report of Medical Examination, dated 16 December 2008 (4 months pre-separation), the examiner documented tender paraspinal muscles with normal reflexes bilaterally; forward flexion to 45 degrees, and negative nerve tension testing.

At the VA C&P exam performed on 16 June 2009 (2 months post-separation), the CI reported constant daily pain that radiated to the right lower extremity and foot with moderate to severe flare ups that occurred approximately once every 2-3 months.  The examiner documented an abnormal gait with flexion to 35 degrees, accompanied by pain.

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the chronic back pain as unfitting, rated 10% analogously coded 5299-5237 (Lumbosacral strain), citing no spasm, normal strength, no sensory deficit and range-of-motion of 70 degrees forward flexion.  The VA rated the lumbosacral spine degenerative disc disease and degenerative joint disease at 20%, analogously coded 5243-5242 (Intervertebral disc syndrome - degenerative arthritis of the spine).

The Board considered the evidence for a higher rating.  There was no STR evidence of ankylosis or flexion of the thoracolumbar spine to 30 degrees or less.  There was some STR documentation of thoracolumbar flexion greater than 30 degrees but not greater than 60 degrees, spasm and abnormal gait in support of a 20% rating both before and after separation.  There was intermittent documentation of guarding, muscle tenderness, and spasm not resulting in an abnormal gait in support of a 10% rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  At the time of the MEB NARSUM, there were no objective findings to support consideration of a separately unfitting peripheral nerve disability rating.  There was no documentation of physician prescribed bed rest for incapacitating episodes to support a higher rating under the code for intervertebral disc syndrome.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), §4.40 (Functional loss), §4.45(The joints), and §4.7 (Higher of two evaluations), the Board recommends a disability rating of 20% for the lumbosacral DDD condition, coded 5242 (Degenerative arthritis of the spine).

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended hearing loss and tinnitus were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The hearing loss and tinnitus were not profiled prior to separation or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that either of these 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 hearing loss and psoriasis 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 lumbosacral degenerative disc disease, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended hearing loss and tinnitus 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Lumbosacral (L4-S1) Degenerative Disc Disease	5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140221, 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, AR20160002560 (PD201400970)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA