RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02508
BRANCH OF SERVICE: Army 		BOARD DATE:  20150715
SEPARATION DATE:  20080927 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Motor Transport Operator) medically separated for lumbar and right foot conditions, which could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3/L3 profile and referred for a Medical Evaluation Board (MEB).  The condition “low back pain unrelieved by surgery and conservative measures w/PT [physical therapy] and medications” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated “chronic low back pain” as unfitting, rated 20%, referencing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI non-concurred with the IPEB (contending for addition of the right foot condition), and a second MEB forwarded the conditions “chronic low back pain” and “capsulitis second MPJ [metarsophalangeal joint], right foot” to the PEB (judging each to fail retention standards).  An informal reconsideration PEB sustained the 20% lumbar rating for the back and added “chronic right foot pain” as an unfitting condition with a non-compensable rating, determining that the latter condition existed prior to service (EPTS) without permanent service aggravation.  The CI appealed this decision; a Formal PEB (FPEB) arrived at the same findings; the CI again non-concurred; and a review by the U. S. Army Physical Disability Agency (USAPDA) affirmed the FPEB decision.  The CI was then medically separated with a combined disability rating of 20%. 

CI CONTENTION: The CI contends for ratings of his lumbar and right foot conditions, and cites persistent difficulties with walking and balance. 

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 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: 

PDA – Dated 20080813	VA* (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5243	20%	Lumbar Degenerative Disc Disease….	5242	NSC	20081216	
Chronic Right Foot Pain	5099-5003	---%	Hallux Valgus/Hammer Toe, Right Foot 	5280	10%	20081216	
Other x 0 (Not In Scope)	Other x 5 (NSC = Not Service Connected)	
RATING:  20%	RATING: 20%	
*Derived from VA Rating Decision (VARD) dated 20090401 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The narrative summary (NARSUM) indicates an onset of back pain in October 2006 “while lifting heavy bunks,” although the CI was not activated until April 2007.  The earliest entry in the available service treatment record (STR) was 2 weeks after activation and recorded the CI’s statement that “the pain has started yesterday when he was coming back from the range ... no trauma;” and, VA records documented a history of back pain dating to June 2005 following a civilian lifting incident with follow up VA treatment notes in 2006.  Imaging (MRI) in May 2007 demonstrated degenerative disc disease (disc protrusion L5/SI with left nerve root compression).  There are subsequent STR entries indicating conservative management to minimal benefit, with some left leg radicular symptoms but no abnormal neurologic findings.  The CI underwent surgery (left hemilaminotomy and diskectomy at LS/S1) in July 2007.  The radicular pain resolved, but back pain interfering with duties persisted; and, the CI (reasonably) declined further surgery.  Post-operative imaging revealed surgical changes without neural compromise.  A post-operative note from November 2007 (10 months pre-separation and the last outpatient entry) documented a normal gait, the absence of spasm, and normal neurologic findings (5/5 strength) without comment regarding range-of-motion (ROM).  There is no STR documentation of significant ROM limitation, abnormal gait or spinal contour, neurological deficits, or incapacitating episodes (after surgical recovery).

The NARSUM was conducted 20 November 2007 (2 weeks after the outpatient note referenced above), and documented “mechanical low back pain unrelieved by surgery and conservative measures;” noted that the CI “expressed the desire to leave the military service;” and, listed profile restrictions as limitations.  The NARSUM physical examination recorded “antalgic gait with limping,” “tenderness to light palpation”, and normal neurologic findings.  The NARSUM measured ROM was 20 degrees flexion (normal 90) and combined ROM of 105 degrees (normal 240).  The MEB’s DD Form 2808, Report of Medical Examination, from February 2008 (7 months pre-separation) recorded “severely limited ROM.”  The NARSUM examiner had noted the possibility of invalid exam findings, and formal ROM measurements were repeated by physical therapy (PT) in April 2008 (5 months pre-separation).  The PT examiner noted that the CI “reported pain with very light palpation ... with light axial load ... with simulated rotation ... winced and reported pain with supine SLR [straight leg raise] but no visual signs of distress while seated ... [and] ... moaned and displayed various facial expressions of pain with motions and very light palpation to the soft tissue.”  The recorded ROM measurements were 40 degrees flexion and 145 degrees combined, “limited by extreme pain as reported by the service member and guarding to prevent any further movement.”  

A VA Compensation and Pension (C&P) examination was conducted 16 December 2008 (3 months post-separation), and duplicated the clinical history from the NARSUM.  The examiner documented persistent back pain without note of radicular symptoms or elaboration of severity or limitations.  The VA physical examination recorded an antalgic gait (“walks with a limp and uses a cane”) with normal neurological findings, but did not elaborate spine exam findings.  It referred to another directed C&P examination for ROM findings (which was not in evidence).  The VA rating decision (VARD) which denied service-connection for the lumbar condition referenced only the above C&P in evidence, citing the historical evidence without commenting on ROM findings.  The VARD stated that it was a “pre-existing disability ... [with] ... no evidence that the condition permanently worsened as a result of the service.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating analogous to 5243 (intervertebral disc syndrome) referenced the PT ROM evidence, and was compliant with the VASRD §4.71a spine rating formula for the referenced ROM.  Members considered whether the NARSUM ROM evidence (corroborated grossly by the MEB DD Form 2808) was sufficiently probative to support a 40% recommendation IAW the §4.71a criterion of flexion ≤30 degrees.  Members agreed, however, that the probative value detractors for the ROM evidence as elaborated above overcame reasonable doubt in assigning the greater probative value to the PT ROM evidence.  A 20% recommendation based on that ROM evidence is also supported by concession of the §4.71a antalgic gait criterion.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes in this case which would provide for additional or higher 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 of the lumbar spine condition.

Right Foot Condition.  There is scant STR evidence for this condition.  An entry from October 2007 noted a complaint of pain from a bunion of his right foot without elaboration of clinical course or details; and, indicated an initial plan to defer treatment for the VA, being told “that is not why he is on [medical hold].” Following appeal after the initial IPEB for the lumbar condition, a podiatry addendum was forwarded to the FPEB.  The only available evidence probative to the condition is excerpted below from that addendum.
[The CI] noted pain to the right bunion and second toe area in late 2006 while training.  He had undergone treatment with conservative methods which were found to be of little use.  He elected for surgical intervention of the bunion and the hammer toe of the right foot in early DEC 07 [~10 months pre-separation].  He had healed from the surgery with reduced pain to the bunion, no pain to the hammertoe but noted discomfort to the adjacent joint, namely the second MPJ [metatarsal phalangeal joint, base of great toe].  He was undergoing a MEB for his back and requested an addendum for his right foot pain.
The podiatrist judged the pain to be “slight and occasional” with prohibition of “running ... marching ... [and] ... rucksacking”; stating “may wear shoe gear for comfort and use a cane as needed;” and, citing post-operative X-rays demonstrating “a well-positioned osteotomy site ... hardware in place.”  The physical exam recorded the absence of edema or inflammation without comment on gait, tenderness or deformity.  The only abnormal ROM measurement was plantar flexion of 10 degrees (normal 45).  

The post-separation VA C&P examination (same as referenced for lumbar condition) provided a history of onset with the 2007 surgery, did not elaborate pain severity or limitations, and documented that the CI was employed in vocational rehabilitation.  The VA physical exam recorded non-specific “tenderness, weakness,” a hallux valgus deformity (10 degrees) of both feet, and grossly normal ankle ROM.  It cited X-ray findings of persistent hallux valgus deformity “digging into the prior cystic area [somewhat at odds with the service podiatry interpretation], causing him pain ... [but] ... I do not feel like his screws are the issue.” 

The Board directed attention to its recommendations based on the above evidence; and, its first charge in that regard is an assessment of the PEB’s determination that the condition was not compensable based on the absence of permanent service aggravation of an EPTS condition.  The FPEB’s DA Form 199 rationale for not conceding permanent service aggravation was “onset in 2006 prior to mobilization, and no documented change in symptoms after mobilization ... pain is due to capsulitis, a known complication of surgery ... has been on protective profile ....” It referenced AR 635-40, 3-3 (c) which concedes permanent service aggravation only for “unexpected adverse effects” of surgery and treatment, and provided medical literature references for the opinion.  The VA examiner’s opinion for conceding permanent service aggravation stated “he developed the bunion during service [conflicting with the MEB podiatrist’s history] which is actually the natural progression of [hallux valgus]” and concluded the hallux valgus was “at least likely as not ... permanently aggravated by ... [the] ... bunionectomy” without further elaboration or citation of medical literature references.  

Members carefully considered whether the PEB or VA opinion was most defensible and fair in this case.  It was ultimately agreed that the PEB historical account (onset pre-mobilization with symptoms reported after MEB referral for the back condition) was most likely accurate; and, that the PEB rationale was more conclusive and the opinion better supported than that provided by the VA examiner (not a podiatrist).  The PEB’s opinion was consistent with Service guidance (applicable IAW DoDI 6040.44 [4.d] when it does “not conflict with the VASRD”); and, the VASRD (§4.22) addresses only the provision of permanent service aggravation/EPTS deductions, not criteria for what constitutes permanent service aggravation.  Members agreed that, although it is clear that the surgery provided by the service caused temporary aggravation, there is no convincing evidence that there were any surgical complications which caused a permanent alteration in the natural course of the EPTS hallux valgus condition.  Furthermore, compliance with the applicable AR 635-40 guidance (as above) is well supported, and the latter is not in conflict with the VASRD (as above).  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 determination that the right foot condition was not compensable based on the lack permanent service aggravation of a pre-existing condition.  

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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right foot condition, the Board unanimously recommends no change in the PEB adjudication; i.e., that the condition was not compensable because it existed prior to service and was not permanently aggravated by service.  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 20140531, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB	0 6 JUL 2016

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 XXXXXXXXXXXXXXXXXXXX, AR20160003046  (PD201402508)

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