RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01763
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070601

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, M1 Armor Crewman, medically separated for “chronic low back pain without neurologic deficit,” with a disability rating of 10%.

CI CONTENTION:  That the PEB board did not correctly assess the severity of the CI’s disabilities, which he believes, should have resulted in a medical retirement.  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 – 20070425	VARD – 20071025	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain without Neurologic Deficit; Range sf Motion Limited by Pain; Positive Guarding	5299-5242	10%	Degenerative Disc Disease, Lumbar Spine	5242	10%	20070823	
Diabetes Mellitus, Type II 	Not Unfitting 	Type II Diabetes Mellitus	7913	20%	20070823	
Tension Type Headache, Episodic	Not Unfitting	No VA Placement	
Fatty Liver	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in May 2003 while deployed, after tightening tank track sections.  He reported persistent midline non-radiating LBP, without lower extremity (LE) or other neurological symptoms since that time.  The CI was evaluated and treated by physical medicine in March 2006 and the examination noted tenderness to palpation (TTP) of the lumbar spine with full range of motion (ROM) and normal examination of the LEs.  A lumbar spine CT scan was performed April 2006 and showed multiple mild posterior disc bulges and degenerative changes of the spine.  The CI was treated conservatively, including with multiple types of injections, without resolution of localized back pain.  Magnetic resonance imaging (MRI) studies November 2006 showed degenerative disc disease (DDD) with focal central disc protrusion at the L4-5 level which narrowed the spinal canal.  Neurosurgical evaluation on 18 December 2006 noted a normal physical examination, without evidence of cord compression (myelopathy) or radiculopathy.  The surgeon indicated that the MRI showed DDD, but “no disc herniation, stenosis or nerve impingement.”  No surgery was recommended and a permanent L3 profile was issued.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “lumbago, chronic, non-radicular” and “intervertebral disc degeneration, L4-5” for PEB adjudication.

At the MEB examination (recorded on DD Forms 2807 and 2808) on 19 December 2006, 5 months prior to separation, back tenderness and normal ROM were noted.

The MEB NARSUM examination on 3 January 2007 (5 months prior to separation) noted complaints of persistent midline LBP, which was worsened by physical activity and exercise.  Physical examination showed a normal gait.  The back appeared normal, with no TTP.  Physical therapy (PT) ROM for the MEB was measured on 5 January 2007.  The ROM, was limited by pain.  The MEB NARSUM was updated 7 April 2007, 2 months before separation, with no subsequent change in this data.  

At the VA Compensation and Pension (C&P) examination on 23 August 2007, performed 3 months after separation, the CI reported stiffness, weakness and decreased ROM.  He did not use a cane or a crutch.  He reported weekly flare-ups lasting 1-2 days, during which he was unable to bend or stand for more than 10 minutes, but denied any incapacitating episodes in the last 12 months.  Physical examination showed no TTP, muscle spasms, guarding, or weakness.  Posture and gait were normal.  There was pain with ROM testing, but repetitive testing showed no changes.  Lower extremity strength, sensation, and reflexes were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10% coded 5299-5242 (Degenerative arthritis of the spine), citing limitation of motion.  The VA also rated the LBP condition 10%, coded 5242 (Degenerative arthritis of the spine), based on the VA C&P examination 3 months after separation, citing painful motion.
 
The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the PT ROM examination for the MEB.    Although there was muscle spasm or guarding, it was not 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 evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  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 low back pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the “Diabetes Mellitus, type II,” “tension-type headaches, episodic,” and “fatty liver” conditions were not unfitting.  

Tension-type Headaches (HAs): No treatment notes were found in the STR for tension headaches.  The MEB NARSUM noted a secondary diagnosis of “tension-type headache, episodic” that was medically acceptable.

Fatty Liver Condition:  The MEB NARSUM noted that the CI was seen by a gastroenterologist in February 2007 due to elevated liver function studies on screening bloodwork.  Additional bloodwork was negative for conditions such as viral hepatitis and other liver diseases.  Liver ultrasound was consistent with a “fatty liver”.  The CI was counseled on conditions associated with a fatty liver, including diabetes and obesity.  A secondary diagnosis of “fatty liver” was noted to be medically acceptable.

The tension-type HAs and fatty liver conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   All were reviewed 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 at separation.  After due deliberation, and 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 any of the contended conditions and so no additional disability ratings are recommended.  

Diabetes Mellitus (DM), Type II:  The physical examination for the MEB on 12 January 2007 indicated that a random blood sugar was elevated and fasting blood sugar would be obtained.  A MEB Internal Medicine addendum dated 14 March 2007 indicated that the CI was diagnosed with DM and his blood sugar control was not optimized on his current dose of oral diabetes medication, or possibly another medication should be added for better control.  The examiner indicated that the DM failed retention standards.  A MEB addendum dated 3 April 2007 noted that the CI was diagnosed with diabetes in December 2006 and had no documented history of hypoglycemia or hospitalizations for DM.  At the VA C&P examination on 23 August 2007, the CI reported he was diagnosed with diabetes at his exit examination.  Diabetes mellitus, Type II was listed on the permanent profile dated 12 April 2007, was indicated to fail retention standards by the MEB Internal medicine examiner but was not mentioned on the commander’s statement dated 11 January 2007.

DM, Type II was reviewed and considered by the Board.  In accordance with DoDI 1332.38, adequate performance to the point of referral into the physical evaluation process supports a finding of fitness for duty, even if the condition may preclude continued military service.  The CI was diagnosed with DM at his separation physical and there was no performance-based evidence from the record that the DM condition significantly interfered with satisfactory duty performance to that point.  After due deliberation, and 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 contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended diabetes mellitus, type II, tension-type headaches, episodic and fatty liver 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.  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 20140423, w/atchs
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 XXXXXXXXXXXXXXXXXXXXXXX AR20160008338 (PD201401763)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (000 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
( ) DVA