RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01642
BRANCH OF SERVICE:  Army	BOARD DATE:  20141015
SEPARATION DATE:  20060803

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SSG/E-6 (11B30/Infantryman) medically separated for chronic back pain and rapid gastric emptying after being placed on medical hold prior to a deployment (September 2005).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3/U3 profile and referred for a Medical Evaluation Board (MEB).  The back pain and gastric emptying conditions, characterized as “degenerative disc disease (DDD) T8-T9 with residual pain, slight/intermittent and decreased range-of-motion (ROM)” and “rapid gastric emptying secondary to Nissen fundoplication surgery,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain, due to degenerative disc disease, without neurologic abnormality” as unfitting, but concluded based on “compelling evidence” that it “existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by such service.”  Therefore it was not rated.  The “rapid gastric emptying, following Nissen fundoplication surgery x2” was determined to be unfitting but unrelated to military service and therefore was also not rated.  The CI appealed to the Formal PEB which rated the chronic back pain at 10% noting that “injured his back in the Sinai in October 2003” (which was during a previous period of mobilization), and affirmed the PEB’s finding for the rapid gastric emptying.

CI CONTENTION:  “Please consider all conditions”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting chronic back pain and rapid gastric emptying conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Corrections of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20060713	VA – At Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, due to Degenerative Disc Disease, Without Neurologic
Abnormality	5299-5242	10%	Degenerative Disc Disease  T8 and 9	5237-5243	40%	20060801	
Rapid Gastric Emptying, following Nissen Fundoplication Surgery X2. Fundoplication Surgery Performed in 2001, Unrelated to Military Service.	7399-7308	--%	Rapid Gastric Empting Syndrome	7399-7304	40%	20060801	
Other x 0  (Not in Scope)	Other x 5 	20060801	
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20061120 (most proximate to date of separation)

ANALYSIS SUMMARY:

Chronic Back Pain Condition.  Although the service treatment record began back pain documentation in 2005, he related persistent mid/upper back pain since 1993 after falling while conducting hand-to-hand combat training.  Initial X-rays revealed DDD T-8 through T-10, thoracic vertebrae.  Non-surgical treatments to include local injections failed to provide long term pain relief.  At the MEB narrative summary (NARSUM) examination (15 March 2006; 4 months prior to separation) the CI reported “daily pain aggravated by sudden movements, rucking, sit-ups, or wearing full battle gear.”  The physical examination (PE) revealed a normal gait with thoracic tenderness.  ROM was minimally limited in extension and all planes of motion were limited by pain.  The diagnosis remained unchanged as DDD of the thoracic spine.  There was no commander’s statement contained in the file.  The VA general Compensation & Pension (C&P) examination performed on 1 August 2006 (2 days prior to separation) the CI endorsed a constant 8 of 10 aching/sharp pain to his upper back worsened by physical activity and relieved with medication.  He denied periods of incapacitation.  His functional limitation was “cannot lift more than 40 pounds.”  The PE revealed a normal gait with lumbar (not thoracic as seen in the NARSUM) tenderness and spasm.  ROM was severely decreased and Deluca was positive for pain, fatigue and lack of endurance resulting in a global 5 degree reduction.  There was symmetry of spinal motion with normal curvatures of the spine.  There was no comment regarding guarding or abnormal sensation.  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)	MEB ~ 4 Mo. Pre-Sep
(20060424) 	VA C&P ~ 0 Mo. Sep
(20060801) 	
Flexion (90 Normal)	90	25	
Extension (30)	22	5	
R Lat Flexion (30)	30	5	
L Lat Flexion (30)	30	5	
R Rotation (30)	30	10	
L Rotation (30)	30	10	
Combined (240)	232	60	
Comment	painful motion	(+) Deluca by 5 degrees; tenderness; spasms 	
§4.71a Rating	10%	40%	

The Board directs attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition slightly differently, they both utilized similar primary codes of 5242 (degenerative arthritis) and 5243 (Intervertebral disc syndrome) respectively; with the PEB citing painful motion and the VA as limited motion.  Board members first agreed that sufficient evidence of painful motion was present to justify the rating of 10%, as well as the presence of localized tenderness not resulting in abnormal gait or spinal contour IAW §4.59 and §4.71a.  Next, members acknowledged the ROM values reported by the VA examiner, at the time of service separation, being significantly worse than those reported by the MEB 4 months prior, having very significant implications regarding the Board's final rating recommendation.  The Board thus carefully deliberated its probative value assignment to these differing evaluations, and carefully reviewed the Service file for corroborating evidence in the 12-month period prior to separation.  There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.

Board members then considered that the presence of back tenderness and spasms (as noted in the VA exam) is not just physically plausible in this case, but expected in a condition of such severe limited mobility.  However, such severity in the thoracolumbar spine would also expect to alter one’s gait as well; and, if the documented spasms were at a level of such great intensity, then a normal spinal curvature would not be expected to be present.  It is the action officers’ opinion that the severe impairment in thoracolumbar motion cannot be explained on a mechanical basis in a non-surgical and atraumatic spine with bi-level disc degeneration.  Additionally, all Board members considered the possibility that the recorded limitations were influenced by voluntary restrictions not reflective of the actual disability.  Based upon these factors, even though the VA exam was at the time of separation, the Board majority placed greater probative value upon the MEB examination at 4 months prior to separation.  Even with due consideration of reasonable doubt and acknowledgement of the functional limitations in evidence, member majority agreed that a 40% rating recommendation premised on the VA ROM data could not be reasonably supported.  Members did agree, however, that there was ample demonstration of painful motion to fulfill §4.59 criteria for a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), member majority agreed that a disability rating of 10% for the chronic low back pain condition was appropriately recommended in this case.

Rapid Gastric Emptying, Status Post Nissen Fundoplication Surgery.  The CI underwent a primary and revision Nissen fundoplication surgery (stomach wrap around the food tube) for persistent epigastric pain in 2001.  Summary reports indicated that he did well post-operatively with only a single remote follow-up for epigastric pain in September 2002.  Symptoms of abdominal bloating and pain returned in mid-2004 and upon further invasive testing, abnormal gastric emptying was found.  A Service encounter dated 13 September 2005 noted, “The [CI] is stable as long as he takes his medication” and “deploy without restrictions.”  A summary report from the CI’s civilian treating provider dated 16 September 2005 clearly spelled out the CI’s ability to perform all military specific duties and requirements to include, “…being mobilized outside the US to a harsh environment as required for his job.”  At the MEB exam, the CI reported abdominal bloating and cramps after eating.  He endorsed having occasional diarrhea with rapid transit time from urge to defecation.  The MEB PE was unremarkable, excepting mild tenderness in the mid upper stomach.  His condition was considered chronic and stable and his profile did not exclude him from deployment.  At the VA C&P exam the CI reported daily episodes of abdominal pain, cramping, and alternating diarrhea and constipation.  The examiner specifically stated, “There is no functional impairment resulting from the above condition.”  The PE revealed increased bowel sounds.

The Board directs attention to its rating recommendation based on the above evidence.  The Army PEB found the stomach condition unfitting.  However, it was found to be EPTS and was not permanently service aggravated (PSA).  The Board’s authority for recommending a change in the service’s EPTS determination is not specified in DoDI 6040.44, but is considered adjunct to its DoD-specified obligation to review service fitness adjudications.  As with its consideration of fitness adjudications, the Board’s threshold for countering service EPTS 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 CI’s surgical dates within the year 2001 clearly reflected a period prior to active military status as indicated by his “Release from Active Duty,” form DD Form 214.  Member’s agreed that although stomach related symptoms were present, the CI maintained deployability when released from medical hold.  The civilian medical provider’s summary (10 months prior to separation) clearly indicated the CI’s ability to perform his duties and there was no subsequent interim history that would alter such findings.  After due deliberation, the Board unanimously agreed that the available evidence supports the PEB’s adjudication of the gastric emptying condition as EPTS.  Additionally, there is no evidence to support the argument that the gastric condition was PSA beyond any normal progression.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change in the PEB’s adjudication of the rapid gastric emptying condition, status post two abdominal surgeries.

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 chronic back condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  In the matter of the gastric emptying condition and IAW VASRD §4.114, the Board unanimously recommends no change in the PEB adjudication.  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 2014-01642, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20150007584 (PD201401642)

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:

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