RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02528
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150709
SEPARATION DATE:  20080901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Light Wheel Vehicle Mechanic) medically separated for back pain.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3/H2 profile and referred for a Medical Evaluation Board (MEB).  The “lumbar spondylosis,” “bulging lumbar intervertebral discs” and “lumbar facet arthropathy with neuroforaminal stenosis” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (right ear hearing loss and right knee pain) for PEB adjudication.  The Informal PEB adjudicated his multiple back conditions together as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

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 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:  

IPEB – Dated 20080425	VA* - Service Treatment Records  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	10%	Lumbar Spine Condition…	5242-5010	10%	STR	
Hearing Loss, Right Ear	Not Unfitting	Right Ear Hearing Loss	6100	0%	STR	
Right Knee Patellofemoral Syndrome	Not Unfitting	Right Knee Condition	5260	NSC	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 10	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20090417 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:

Low Back Condition.  Review of the service treatment record (STR) found that the CI had a long history of slowly progressive low back pain following a motor vehicle accident several years prior to the MEB process.  Radiographic studies in June 2007 showed lumbar spondylosis, degenerative disc disease, moderate spinal canal stenosis and moderate bilateral neuroforaminal narrowing.  The condition was not considered to be amenable to surgery.  A Physical Medicine evaluation on 15 November 2007 (10 months prior to separation) reported that pain was intermittent, non-radiating, and not associated with numbness or tingling.  Examination showed abnormal (but unmeasured) lumbar flexion and no muscle spasm.  Lower extremity strength was normal.

According to the narrative summary (NARSUM) dated 3 April 2008 (5 months prior to separation) the CI experienced sudden onset of low back pain during drills while running downhill carrying another soldier in May 2007.  Low back pain was reportedly constant and of 5-6/10 severity.  Exacerbations of pain were caused by running, heavy lifting or prolonged standing, and were occasionally associated with numbness radiating to both feet.  Physical exam showed minimal spasm and paraspinal tenderness, but gait and spinal contour were normal.  Thoracolumbar flexion after three repetitions was 80 degrees (normal 90 degrees), and combined range-of-motion (ROM) was 185 (normal 240 degrees).  A finding of nerve root irritation was negative, and neurologic examination of the lower extremities was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), citing loss of motion as the rationale.  The VA also rated the condition at 10% (based on the STR) under a combination 5242-5010 code (degenerative arthritis of the spine; arthritis due to trauma).  The Board agreed that the ROM in evidence supported a 10% rating for flexion greater than 60 degrees but not greater than 85 degrees, or combined ROM greater than 120 degrees but not greater than 235 degrees.  There was no evidence of guarding or spasm severe enough to cause an abnormal gait or spinal contour; therefore the next higher 20% rating was not justified.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula.  The Board finally considered if additional disability was justified for lower extremity radiculopathy.  The NARSUM examiner recorded a complaint of intermittent lower extremity radiating numbness.  However, the presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board concluded therefore that this condition could not be recommended for additional disability 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 chronic low back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that right ear hearing loss and right knee patellofemoral syndrome were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

The CI underwent right ear surgery (mastoidectomy) in 1995 and experienced mild hearing loss post-operatively.  Although no subjective change in hearing was reported, objective testing in 2006 showed worse hearing, so the CI was placed on a hearing conservation program and an H2 profile.  The NARSUM examiner noted that the condition met retention standards.
There were no STR entries regarding a right knee condition except an X-ray report, which described unremarkable findings.  On the MEB’s DD Form 2807, the CI denied knee trouble.  The NARSUM examiner reported a history of right knee patellofemoral syndrome which was considered to meet retention standards.  On the Report of Medical Assessment, the CI circled “No” for “any conditions which currently limit your ability to work in your primary military specialty.”

The hearing condition was profiled H2 while the knee condition was not profiled.  Neither condition was implicated in the commander’s statement nor was judged to fail retention standards.  Both 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.  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 of the contended conditions and so no additional disability ratings are 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 chronic 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 right ear hearing loss and right knee patellofemoral syndrome 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.  

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 20140428, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXXXX, AR20150014899 (PD201402528)

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