RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01278
BRANCH OF SERVICE:  Army	BOARD DATE:  20150303
SEPARATION DATE:  20081021

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Light Wheel Vehicle Mechanic) medically separated for degenerative arthritis of the lumbar spine and limited motion of temporomandibular articulation (joint) (TMJ).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but he was able to complete an alternate physical fitness test.  He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar spine and jaw conditions, characterized as “chronic low back pain due to degenerative joint and disc disease” and “chronic jaw pain and TMJ dysfunction secondary to traumatic fracture and ORIF,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (right knee pain due to osteoarthritis and parasomnia not otherwise specified [NOS]) for PEB adjudication.  The Informal PEB adjudicated “degenerative arthritis, lumbar spine” and “limited motion of temporomandibular articulation following mandibular fracture and subsequent surgeries” as unfitting, rated 20% and 0%.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “When I got my rating I didn’t get rating [sic] for PTSD.  My health has changed and am receiving 100% from VA.”

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 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/Naval 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 IPEB – Dated 20080825	VA - (6 days Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis, Lumbar…	5242	20%	Lumbar Strain	5237	20%	20081027	
…Temporomandibular Articulation	9905	0%	TMJ Articulation	9905	10%	20081027	
Right Knee Pain	Not Unfitting	PFPS of the Right Knee	5299-5260	10%	20081027	
Parasomnia	Not Unfitting	No VA Rating*	
Other x 1  (Not in Scope)	Other x 4	20081027	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20090210 (most proximate to date of separation [DOS]).   *Post-traumatic stress disorder rated at 50% effective 20090623 based on post-separation treatment and an examination

ANALYSIS SUMMARY:

Degenerative Arthritis, Lumbar Spine.  The CI had been seen several times for low back pain (LBP), but was able to continue his duty requirements until he was in a motor vehicle accident (MVA) on 30 October 2007 while deployed.  Following this, he was evacuated from theater for a broken jaw (below).  His LBP was aggravated after the accident leading to treatment by both chiropractic and physical therapy.  An MRI on 22 March 2008 showed mild degenerative disc disease at L4-5.  The narrative summary (NARSUM) was dated 23 May 2008.  The CI reported a multi-year history of LBP which was aggravated by the wear of Kevlar in theater.  On examination, he was noted to have “ropy” texture changes of the paraspinal muscles.  The neurological examination was normal and provocative testing for nerve root irritation was negative.  An abnormal gait secondary to spasm was not present and the contour was normal.  
At the VA Compensation and Pension (C&P) exam performed on 27 October 2008, 6 days after separation, the CI reported that walking was limited, but that he was not sure how far he could walk.  He reported 10-15 days of incapacitation the previous 12 months from the back pain; but the Board did not find records which substantiated this in the evidence available for review.  He did not use an assistive device.  On examination, his gait and posture were normal.  The neurological examination was normal.  Spasm was not documented.  The range-of-motion (ROM) was reduced and is charted below.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~6 Mo. Pre-Sep	MEB ~ 5 Mo. Pre-Sep	VA C&P ~ 6 days Post-Sep	
Flexion (90 Normal)	35	40	45	
Combined (240)	170	160	145	
Comment	Taken during therapy.  Nml neurological examination	Painful motion.  Rotation improved with repetition; other measurements decreased.	Nml gait.  No additional loss with repetition.  Nml neurological examination	
§4.71a Rating	20%	20%	20%	

The PEB rated the back condition at 20% using the code 5242 (degenerative arthritis of the spine).  The VA also rated the back at 20%, but used the code 5237 (lumbosacral strain).  The ROM for the final three sets of measurements available for review all support a 20% rating.  Earlier values support a 40% rating for reduced flexion, but both were taken while in treatment and within months of the accident.  The improvement shown in the chart above is consistent with a favorable response to treatment.  The incapacitation reported is not supported by the record, but would not support a rating higher than the 20% adjudicated by both the PEB and VA regardless.  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.

Limited Motion of Temporomandibular Articulation.  The CI also broke his jaw in the MVA mentioned above and was evacuated from the theater.  He had two separate surgical procedures, on 18 December 2007 and 26 February 2008.  He recovered well, but did require post-operative adjustment for proper occlusion.  The NARSUM noted continued pain in his jaw and that his right TMJ popped if he tried to open it more than 1.5 cm.  It also noted that the jaw pain prevented him from securing his helmet chin strap.  At the MEB examination, the examiner noted tenderness over the chin and floor of the mouth.  At the VA C&P examination performed 6 days after separation, the examiner recorded that the CI had no functional impairment, minimal loss of motion and no loss of masticatory (chewing) function.  There was some discomfort to palpation over the right TMJ.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Temporomandibular ROM (Degrees)	MEB ~ 2 Mo. Pre-Sep	VA C&P ~ 6 days Post-Sep	
Inter-incisal	46	42	
Lateral excursion	7 mm Left and right	+/- 3 mm	
Comment	Pain with opening	No functional impairment.  Measurements are “approximate”	
§4.71a Rating	0%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The MEB measurements support a 0% rating using code 9905 (identical coding used by both the PEB and VA).  However, a 10% rating is supported by the presence of painful motion IAW VASRD §4.59 (painful motion).  The VA measurement supports a 10% rating based on a reduced lateral excursion at +/- 3 mm.  The Board noted that these measurements were annotated as “approx. 42 mm with +/- 3 mm lateral excursion” and were most proximate to DOS.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% using the code 9905 for the right TMJ condition.

Contended (Implied) Right Knee Pain and Parasomnia.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right knee and parasomnia conditions 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.  Neither condition was profiled (at the time of separation) or specifically implicated in the commander’s statement.  Neither was judged to fail retention standards.  The records indicate that the CI was not seen specifically for the right knee or profiled for it the final 4 years of service.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance at the time of separation.  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 either condition and so no additional disability rating is 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 back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the TMJ condition, the Board unanimously recommends a disability rating of 10%, coded 9905 IAW VASRD §4.150.  In the matter of the TMJ condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right knee and parasomnia conditions, 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.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Arthritis Lumbar Spine	5242	20%	
Limited Motion Temporomandibular Articulation	9905	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140310, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013433 (PD201401278)

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:

Encl		XXXXXXXXXXXXXXX
		Deputy Assistant Secretary of the Army
		     (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA