RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-01280
BRANCH OF SERVICE:  Army 	 SEPARATION DATE:  20020208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M10/Motor Transport Operator) medically separated for a lumbar spine condition that could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The diagnosis “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (“leg length discrepancy” and “congenital pes planus”) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic mechanical low back pain” as unfitting, rated 10%, citing application of Department of Defense Instruction (DoDI) 1332.39 and Army Regulation (AR) 635-40 (B-39).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI specifies contentions for her lumbar and separate pes planus conditions.  The complete submission is at Exhibit A.   

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:  

IPEB – Dated 20011018	VA* - (4 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Low Back Pain…	5299-5295	10%	Limitation of Motion Lumbar Spine	5292	0%	20011010	
Congenital Pes Planus	Not Unfitting	Pes Planus Left Foot	5276	NSC*		
		Pes Planus Right Foot	5276	NSC		
Other x 1 	Other x 0.  *NSC = Not Service Connected	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20020312 (most proximate to date of separation [DOS]). 

ANALYSIS SUMMARY: 

Lumbar Spine Condition.  The service treatment record (STR) differs from the history of onset as related in the narrative summary (NARSUM).  The former indicates an atraumatic onset of back pain in March 2000 (~2 years pre-separation) and the latter attributes the pain to a fall from a truck in May 2000 (no injury documented in STR).  The pain persisted and was unresponsive to conservative treatment.   In October 2001 the CI was referred for evaluation of a “questionable radiculopathy;” and, imaging (MRI) demonstrated disc disease (“mild” L4/5 and L5/S1 without neural encroachment).  Electrodiagnostic (EMG) testing was normal; there are multiple STR entries noting normal neurologic findings (5/5 strength, normal gait) with none to the contrary; surgery was not recommended; and, the CI was referred for an MEB.  There is an early STR entry noting limitation of flexion to 35 degrees (not specifying if lumbar segmental or full thoracolumbar [normal 90]), and the examiner documented contrary observations (fluid motion mounting exam table, etc.).  All other STR entries (including those most proximate to separation) which comment on range-of-motion (ROM) describe it as grossly normal.  The MEB’s DD Form 2808 records “flexion to 80 or 90⁰ painful.”  There are no STR entries contrary to any of these ratable features, or documentation of incapacitating episodes.

The NARSUM was conducted 10 September 2001 (5 months pre-separation) and documented “daily pain” rated 8-9/10 “initiating with any activity such as bending.”  There was no notation of concurrent radiation or radicular symptoms.  The NARSUM physical examination recorded the absence of spinal tenderness and normal neurologic findings (5/5 strength).  The NARSUM description of ROM was “full ... [with] ... pain past 90 degrees of flexion.”

A VA Compensation and Pension (C&P) examination was conducted 10 October 2001 (4 months pre-separation) and documented pain that “bothers her on a regular basis” exacerbated by “sitting and standing too long and running, as well as exercising.”  No radicular component was mentioned.  The VA physical examination recorded a normal gait, thoracic spasm, and normal neurologic findings.  The VA measured ROM was flexion to 65 degrees (lumbar segmental, normal), and normal measurements for extension and right/left lateral flexion.  

The Board directed attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below. 
5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20		
Slight ........................................................................................................................................ 10
5295 Lumbosacral strain:
...
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
 	          in standing' position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10
The PEB’s 10% rating under 5295 specified “characteristic pain on motion,” and the criteria for any higher rating were not in evidence.  The VA rater judged that limitation of motion did not reach the “slight” threshold for a compensable rating under 5292.  Although members agreed that a 10% rating under code 5292 was reasonably conceded, the ROM evidence does not support a higher rating.  The only remaining code available in the 2002 VASRD schedule was 5293 (intervertebral disc syndrome), which is marginally applicable and would achieve at best the minimal compensable rating of 10%.  The Board considered whether additional rating could be recommended under a peripheral nerve code for the radicular symptoms, but members agreed that neither the requisite functional link to fitness nor the presence of a VASRD ratable deficit were supported by the evidence.  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 of the lumbar spine condition.

Contended Pes Planus Condition.  The VA rating decision provides a detailed history for this condition and is the source for some of the following evidence which was not included in the available STR documentation (earliest records missing).  Although the CI’s entry physical recorded normal arches, she began to complain of bilateral foot pain a few weeks after starting active duty (33 months pre-separation).  She was fitted with orthotics and, other than two visits for left foot pain in mid-2000 and bilateral pain in November 2000, the condition remained clinically silent.  During the MEB she was referred to Podiatry for leg length discrepancy and fitted with a heel lift, and a diagnosis of pes planus was not documented.  Contemporary bilateral weight-bearing X-rays of the feet were interpreted as normal.  The NARSUM did not document complaints or limitations referable to a foot condition, but the physical examination noted asymmetric pronation of the ankles with gait (more likely resulting from the leg length discrepancy).  The examiner opined that the condition was congenital, e.g., existed prior to service (EPTS), but did not meet retention standards.  The commander’s performance statement mentioned “foot problems;” but, the cited limitations interfering with MOS performance (heavy lifting or carrying, digging, building fortifications) were more correlated with lumbar restrictions than with the feet.  The profile was only for the lumbar condition.  The pre-separation VA examiner documented the CI’s report of foot pain with prolonged standing and walking and “cannot run,” and noted that she “occasionally wears a shoe insert.”   The VA physical examination (recall normal gait) recorded normal alignment with weight bearing, arch tenderness, no deformities, and normal measured ROM of both ankles.  The VA diagnoses were “mild left pes planus deformity ... [with] ... pain in arch” and “right pes planus: no diagnosis because there is no pathology to render a diagnosis.”  As charted above, the VA did not service connect the condition(s), citing “congenital...defect...[with]...no permanent residual or chronic disability.”

The Board directed attention to its recommendation based on the above evidence; and, its main charge with respect to this condition is an assessment of the fairness of the PEB’s determination that it was 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.  Although mentioned by the commander and forwarded as failing retention standards, the condition was not profiled and there is no evidence indicating that it manifested any significant clinical acuity during service or at separation.  All members thus agreed that there was no satisfactory performance based evidence indicating that it rendered the CI unable to fulfill MOS requirements or continue her military service.  Even if conceded as unfitting, an argument that there was permanent service aggravation of this clearly EPTS condition is at most tenuous.  It should also be noted that the VASRD §4.71a rating for mild bilateral pes planus is 0%.  Finally, the condition is subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  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 pes planus condition; thus, it cannot be recommended for additional disability rating.

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.  As noted above, PEB reliance on DoDI 1332.39 and AR 635-40 for rating was operant in this case and it was adjudicated independently of that guidance by the Board.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the pes planus 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.

RECOMMENDATION:  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 20140212, 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-00), 2900 Crystal Drive, Suite 300, Arlington, VA   22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160005104  (PD201401280)

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
( ) OVA