RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01260
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091001

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E1, Radio and Communications Security Repairer, medically separated for “degenerative arthritis, lumbar spine,” with a disability rating of 10%.  

CI CONTENTION:  He was given a higher rating for his conditions by the VA and he was not evaluated for PTSD and other issues.  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 - 20090623	VARD - 20100813	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis,  Lumbar Spine	5242	10%	Degenerative Joint Disease, Lumbar Spine	5242	10%	20100614	
Diabetes Mellitus	Not Unfitting 	Diabetes Mellitus Type II	7913	20%	20100614	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Degenerative Arthritis, Lumbar Spine.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain began in 2006 without associated trauma.  Electrodiagnostic studies in 2007 of the right lower extremity were negative for radiculopathy, and radiographic imaging studies in 2008 showed some degenerative changes at L4.  There was no surgical indication, and despite treatment with medication, physical therapy (PT), and epidural steroid injections, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty, so he was referred for a MEB.  The MEB forwarded “chronic low back pain due to facet arthrosis with lumbar neuritis causing radicular symptoms” for PEB adjudication.

A VA Compensation and Pension (C&P) examination on 15 April 2009 (6 months prior to separation), noted a normal gait and lumbar spine appearance.  Thoracolumbar flexion was 90 degrees (normal 90 degrees) and combined range of motion (ROM) was 240 degrees (normal 240 degrees).  There was no tenderness or spasm, and no limitation after repetitive motion.  Signs of nerve root irritation were negative.  Lower extremity muscle strength was normal.

The NARSUM evaluation on 27 May 2009 (4 months prior to separation) noted complaints of constant low back pain and, at times, numbness radiating into his right leg and foot.  The CI reported pain of 6-9/10 intensity which was aggravated by lifting and prevented running, marching or wear of body armor.  Physical examination showed an antalgic gait, but there was no muscle spasm, and guarding was not reported.  Tenderness at the L4-S1 area was present.  A test for possible nerve root irritation was positive on the right.  Forward thoracolumbar flexion was 90 degrees and combined ROM was 240 degrees.  Painful motion was present.  There were no lower extremity neurologic deficits noted.

At a VA C&P examination on 14 June 2010 (8 months after separation), the CI reported constant pain which radiated to the right hip and buttock, and numbness of the first and second toes.  Incapacitating episodes were denied.  Examination revealed a normal gait and spinal contour, and no tenderness, paraspinal muscle spasm, or guarding.  Neurologic findings were normal and maneuvers for radicular signs were negative.  Thoracolumbar flexion was 90 degrees and combined ROM was 225 degrees.  There was no painful motion and no additional limitation of motion after repetition. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 5242 (degenerative arthritis of the spine), citing limitation of motion.  The VA also assigned a 10% rating under the same code for limitation of combined ROM based on the C&P examination 8 months after separation.  The Board agreed that a 10% rating, but no higher, was justified for tenderness and painful motion reported on the NARSUM examination, and for combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the post-separation VA examination.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.

There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  There was also no evidence of peripheral nerve impairment which would provide for additional 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).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes that 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 condition. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that diabetes mellitus (DM) was 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.  

While deployed in 2008, the CI developed symptoms determined to be caused by new-onset DM, and required urgent aeromedical evacuation.  The condition was ultimately stabilized and reasonably controlled on oral hypoglycemic medication, insulin and dietary restriction.  There was no evidence of “regulation of activities” (avoidance of strenuous occupational and recreational activities) due to diabetes, and no requirement for frequent visits to a diabetic care provider.  There were no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations and no diabetic complications.  The NARSUM examiner and the MEB indicated that the DM was a medically unacceptable condition and it was profiled (P3).  The PEB’s DA Form 199 stated that the commander reported CI non-compliance with treatment, and that “inability to deploy is not a sole reason for an unfit determination.”  However, the commander’s statement was not in evidence.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the diabetes mellitus favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 7913 and meets the VASRD §4.119 criteria for a 20% rating (requiring insulin and restricted diet).

BOARD FINDINGS:  In the matter of the lumbar condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended diabetes condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 20%, coded 7913 IAW VASRD §4.119.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Arthritis, Lumbar Spine.  	5242	10%	
Diabetes Mellitus 	7913	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140306, with attachments
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 AR20160007280 (PD201401260)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the
enclosed recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual's separation as a permanent disability retirement with the
combined disability rating of 30% effective the date of the individual's original medical
separation for disability with severance pay.

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:

a. Providing a correction to the individual's separation document showing that
the individual was separated by reason of permanent disability retirement effective the
date of the original medical separation for disability with severance pay.

b. Providing orders showing that the individual was retired with permanent
disability effective the date of the original medical separation for disability with
severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will
account for recoupment of severance pay, and payment of permanent retired pay at
30% effective the date of the original medical separation for disability with severance
pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP)
and medical TRICARE retiree options.

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