RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02534
BRANCH OF SERVICE:  Army	
DATE OF PLACEMENT ONTO TDRL:  20080428  
DATE OF REMOVAL FROM TDRL:  20091112

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Food Service Specialist) medically separated for a lumbar spine condition which 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 conditions “herniated disc (L4 L5)” and “lumbosacral disc degeneration” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (obstructive sleep apnea [OSA], headaches, and PTSD [post-traumatic stress disorder]) for PEB adjudication; all judged to meet retention standards.  The Informal PEB consolidated the two lumbar spine diagnoses as a single unfitting condition (“L4-5 disc protrusion with diffuse bulging at L4-5 and L5-S1, there are no motor deficits”), rated 40%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI was placed on the Temporary Disability Retired List (TDRL); and, approximately 18 months later, the IPEB adjudicated the lumbar condition as unfitting, rated 20%.  The remaining conditions were re-affirmed as 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 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:  

Final PEB – 20091016	VA Rating Decision1 - 20081208	
TDRL Placement – 20080428	Code	Rating	Condition	Code	Proximate Rating	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
L4-5 disc protrusion …	5243	40%	20%	Lumbar Disc …	5010-5243	20%	40%	
				LLE Radiculopathy…	8520	10%	10%	
OSA	Not Unfitting	OSA 	6847	50%	50%	
Headaches	Not Unfitting	Headaches	8199-8100	0%	0%	
PTSD	Not Unfitting	PTSD	9411	Not Service Connected	
Other x 0 (Not in Scope)	Other x 1	
RATING:  40% → 20%	RATING:  70%	
1. VA rating decision (VARD) most proximate to TDRL placement.
2. Rating derived from Compensation and Pension (C&P) exam dated 20081014, ~6 mos. post-TDRL placement.
3. Rating derived from C&P exam dated 20091103, ~1 mo. pre-TDRL removal. 

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The service treatment record (STR) contains an entry within 2 weeks of enlistment (November 2006) noting a complaint of back pain.  Although not captured in STR outpatient notes, the narrative summary (NARSUM) and VA Compensation and Pension (C&P) examinations date an onset of low back pain with left lower extremity (LLE) radiation to a strain injury in June 2007.  Magnetic resonance imaging (MRI) from July 2007 demonstrated degenerative disc disease at L4/5 and L5/S1, with a bulge and “some” left nerve root impingement at L4/5.  An electrophysiologic study (EMG) at the same time was equivocally suggestive of a left L4/5 radiculopathy.  There are various STR entries documenting normal (5/5) LLE strength, although a few record bilateral 4/5 strength.  The CI was managed conservatively and responded favorably to epidural steroid injections, although this did not achieve lasting relief and the symptoms remained incompatible with MOS requirements.  Surgical intervention was not recommended.  There are no STR entries commenting on gross range-of-motion (ROM) observations, and the formal ROM measurements in evidence are charted below.  There are no STR entries indicating severe ROM limitation, severe persistent spasm, focal neurologic deficits, gait disturbance, or periods of incapacitation.

The NARSUM was conducted 22 February 2008 (2 months pre-TDRL), and documented persistent back pain with “flareups whenever she walks any distance, causing pain down her legs ... recedes after about 20 minutes of rest ... feels unstable on her feet.”  Documented functional limitations included running, prolonged standing or sitting, bending, lifting, and load bearing.  The NARSUM physical examination recorded a “wide based gait, antalgic, walking with a cane,” with spasm and tenderness.  The neurologic examination noted unsteadiness and incoordination, intact sensation, and 5/5 strength except for 4/5 in some proximal LLE groups caveating, “I cannot determine whether this is true weakness, or reduced effort due to pain.”  Physical therapy (PT) ROM measurements from 22 February 2008 (charted below) were attached to the NARSUM.

A VA C&P examination was conducted 14 October 2008 (6 months post-TDRL placement), and the documented history appeared to be taken verbatim from the NARSUM.  The examiner noted “moderate to severe” lumbar pain which was “constant but worsens suddenly;” and, elaborated radiation to the “left buttock, leg to foot” with subjective numbness and “weakness of the left leg ... has fallen twice.”  Documented limitations included bending, twisting, walking, and standing longer than 10 minutes.  The VA physical examination recorded antalgic gait and abnormal contour, the absence of spasm, and tenderness.  The neurologic findings were light sensory deficits to the distal LLE, normal reflexes, 3/5 weakness in some LLE groups, and diminished proprioception (joint position sense, important for balance) of the left great toe.  The ROM evidence from this exam is charted below.  The VA examiner listed diagnoses of “disc herniation pressing on L4 nerve root” and “radiculopathy, left.”

TDRL re-evaluation was conducted on 1 September 2009 (2 months pre-separation).  The examiner noted a pain distribution of 80% back/20% LLE; and, stated, “Since her discharge, she notes that her pain in her lower back is significantly worse.”  No associated neurological symptoms were mentioned.  Documented limitations included bending, stooping, prolonged walking or standing, and lifting over “approximately 3 to 4 pounds.”  The TDRL physical examination recorded “slow purposeful antalgic gait, stooped over at waist” without comment on spasm, guarding, or tenderness.  Neurologic findings were intact sensory dermatomes, normal reflexes, normal strength of proximal groups, and 4/5 strength of distal groups (ankle flexion and extension, extensor hallucis longus; and, the examiner noted “cogging” (jerking motion suggestive of voluntary influence) with all strength testing.  The TDRL re-evaluation included ROM measurements by PT which are charted below.  A repeat VA spine examination was conducted 3 November 2009 (9 days pre-separation) and the associated rating decision provided the ROM measurements charted below.  It also stated, “Your detailed motor and sensory exams were abnormal on your left, however your right side was normal.”  The final PEB’s DA Form 199 cited flexion to 45 degrees and quoted a physical therapist statement, “Movements in clinic indicate more functional [ROM] than was indicated during [ROM] testing.”  The source evidence for that flexion measurement and statement is not available, but the DA Form 199 entry is judged to be reliable for its validity.

The ROM evaluations referenced above, which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.

Thoracolumbar
ROM	MEB PT*
~ 2 Mo. Pre-TDRL Placement	VA C&P
~6 Mo. Post-TDRL Placement	TDRL PT
~2 Mo. Pre-TDRL Removal	VA C&P
9 Days Pre-TDRL Removal	
Flexion (90⁰ Normal)	35⁰/35⁰*	30⁰	35⁰	30⁰	
Combined (240⁰)	155⁰/115⁰*	155⁰	115⁰	90⁰	
§4.71a Rating	20%	40%**	20%	40%	
    *    Two exams 7 days apart (20080215 and 20080222) charted in order.
    **  VARD of 20081208 cited ROM evidence from Service PT exam of 20080222 in arriving at 20%.
The Board directed attention to its recommendations based on the above evidence.  The PEB’s 40% TDRL rating invoked a DeLuca rationale for ROM that would otherwise rate 20%.  The DA Form 199 acknowledged “she requires a cane for stability;” but, did not cite further neurologic evidence or address the issue of whether there was a ratable neuropathy.  The final PEB rating of 20% was premised on flexion of 45 degrees (source exam not in evidence, as above), although the documented contemporary PT ROM measurements are also within the 20% range IAW VASRD §4.71a.  The VA’s initial 20% rating, curiously, referenced the Service ROM evidence as footnoted above, rather than the VA C&P ROM evidence (which was listed in evidence for the decision).  The flexion of 30 degrees recorded in the C&P exam is the threshold for a 40% rating IAW §4.71a.  The VA increase in rating to 40% proximate to the time of permanent separation was premised on the 30 degrees flexion in the second C&P examination.  

With reference to the TDRL rating of 40%, that is the highest achievable rating under §4.71a in the absence of ankylosis (clearly not in evidence); thus, members readily concurred with recommending no change in the rating for the period of TDRL.  The Board then turned to deliberation regarding whether additional rating could be recommended under a peripheral nerve code for the associated radiculopathy in evidence at the time of TDRL placement (as per the VA determination).  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  Although motor weakness and possible proprioceptive/balance deficits were in evidence, lending credence to a conclusion that the left sciatic neuropathy had functional implications; it is noted that the objective evidence for this was inconsistent and often bilateral (with only unilateral involvement confirmed by imaging and EMG).  The imaging and EMG results are also inconsistent with the degree of subjective symptoms and intermittent exam findings in the record; and, there were significant probative value concerns expressed by several examiners.  Considering these factors, members agreed that there was insufficient support for recommending a Service ratable neuropathy in this case.

The Board next deliberated the fairness of the PEB’s 20% rating determination at the time of permanent separation.  It was considered that the VA ROM evidence (30 degrees flexion just meeting the 40% threshold) was closer to the time of permanent separation, although the TDRL ROM measurements were still temporally proximate.  With consideration of just the competing Service and VA ROM evidence, reasonable doubt favors the higher rating; but, members brought to bear two additional factors.  Firstly, the PEB’s DA Form 199 evidence of an additional measurement of flexion to 45 degrees was better aligned with the 35 degree measurement from PT for the TDRL evaluation.  Secondly, the ROM measurements were subject to probative value concerns as elaborated above; and, especially considering that only a margin of 5 degrees separated the ratings derived from the competing ROM measurements, members agreed that the probative value detractors favored default to the Service PT measurement corroborated by the additional ROM evidence from the DA Form 199.  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 adjudications of the lumbar spine condition for the period of TDRL and at the time of permanent separation.

Contended Sleep Apnea and Headache Conditions.  The earliest entry in the available STR for OSA is from May 2007 (~12 months pre-TDRL) with a chief complaint of sleep walking.  A sleep study diagnosed OSA; a continuous positive airway pressure (CPAP) device was prescribed; and, a follow up sleep study showed improvement in sleep parameters, but CPAP was continued.  The NARSUM identified, but did not elaborate, the condition.  The VA C&P examination 6 months after TDRL placement noted issues with dislodging the CPAP mask during sleep, but stated that the response to treatment was “good if she is able to use the machine all night.”  

There is a paucity of STR entries addressing the headache condition.  There is a normal brain MRI report from December 2007 (5 months pre-TDRL).  There is an optometry note stating, “Presbyopia [farsightedness] may be a contributing factor to patient’s headache ... not the sole cause ....”  There is no neurologic consultation or indication of specific treatment of headache in the available STR.  The NARSUM identified, but did not elaborate, the condition.  The VA C&P examiner (same as referenced above) noted that the onset of headaches was in October 2007 (7 months pre-TDRL).  Daily “usually severe” morning headaches were reported, but no treatment or evaluation had been sought.

Neither of these conditions appeared to be clinically acute at the time TDRL placement; and, neither was profiled at any time in service.  The commander’s performance statement did not mention either diagnosis or specify any limitations attributable to them; specifically there was no mention of daytime somnolence (from OSA) or work loss from headaches.  The MEB examiner judged that both met retention standards.  The final IPEB reiterated that these conditions (and PTSD) remained unfitting.

The Board directed attention to its recommendations based on the above evidence; and, its main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they were not unfitting.  The Board’s threshold for countering Service 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.  All members agreed that there was no performance based evidence suggesting that either OSA or the headaches significantly interfered with duty performance.  Furthermore, both conditions were 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 either condition; thus neither can be recommended for additional disability rating.

Contended Post-Traumatic Stress Disorder.  The psychiatry addendum dated 25 February 2008 recorded the diagnosis of PTSD, childhood onset.  The addendum noted that the CI began mental health treatment in October 2007 with a psychiatric nurse practitioner, and participated in group therapy.  The author of the addendum documented that the CI was evaluated in mental health secondary to a request from her case manager and that her condition meets retention standards and did not require inclusion in the MEB.  The VA C&P mental evaluation documented that the CI was diagnosed with childhood onset PTSD; however, noted that rationale for the diagnosis was not in evidence.  The C&P exam conducted 8 months after the addendum noted the CI was not receiving any mental health treatment, and had participated for 8 weeks in an anger management course with early discharge after being told by the instructor that she no longer needed it. The CI also reportedly stated she did not understand her PTSD diagnosis.  She had noticed she had changed some when she was 7 years old after being in foster home, and had no idea of why she was placed in foster care.  Childhood incidents included being thrown in water and almost drowning and being subjected to corporal punishment during foster placement.  She was never in combat zone and denied any specific stressor events during active duty as a food service worker.  The VA examiner stated that the CI “does not have PTSD or any other Axis I diagnosis.”  

The Board directed attention to its recommendations based on the above evidence; and, its main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that the PTSD condition was not unfitting.  All members agreed that there was no performance based evidence suggesting that any mental health condition significantly interfered with duty performance. The PTSD condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  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 PTSD condition; thus no additional disability rating is 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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudications for the period of temporary retirement or permanently.  In the matter of the contended sleep apnea and headache conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended PTSD, 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 recommends that there be no re-characterization of the CI’s temporary retirement or permanent disability and separation determinations.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140516, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

MEMORANDUM FOR Commander

XXXXXXXXXXXXXXX

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXX, AR20160005118 (PD201402534)

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