RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02561
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051003

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Indirect Fire Infantryman, medically separated for “chronic low back pain” and “right leg pain” with a combined disability rating of 10%.  

CI CONTENTION:  The applicant was given a higher rating for his conditions by the VA.  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 based upon a 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 - 20050812	VARD - 20070716	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Degenerative Disc Disease at L5-S1 of the Lumbar Spine	5243	10%	20070309	
Right Leg Pain	5099-5003	--%	Status Post Open Reduction and Internal Fixation of Right Tibial Fracture	5299-5262	10%		
Major Depressive Disorder, Single Episode	Not Unfitting 	Anxiety Disorder and Depressive Disorder, Not Otherwise Specified	9400-9434	30%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s low back condition began in January 2004 during a deployment to Iraq where the extra weight of required gear cased his low back pain (LBP).  Thoracic spine X-rays showed “mild” multilevel degenerative arthritis and lumbar spine X-rays show localized degenerative disc changes.  Despite conservative treatment the CI’s LBP continued and no surgery was recommended.  The MEB forwarded “low back pain secondary to degenerative disc disease” for PEB adjudication.

At the MEB examination (recorded on DD Form 2807 and 2808) dated 12 May 2005, 5 months prior to separation, the CI reported he has had very bad back problems with no known trauma since his deployment.  At the MEB orthopedic consult on 25 May 2005, 4 months before separation, the CI reported the insidious onset of LBP during deployment.  The physical examination showed “near full range of motion” of the spine.  There was tenderness to palpation (TTP) of the upper thoracic spine, but no TTP of the lumbar spine or sacroiliac joints.  Muscle strength was 5/5 throughout without abnormal reflexes.  

The MEB NARSUM examination on 13 July 2005, 3 months before separation, noted continued constant LBP.  Physical exam showed “mild” TTP of the lumbar region.  Physical therapy measured thoracolumbar (TL) ROM for the MEB on 20 June 2005 was flexion of 78 degrees (normal 90 degrees), and combined TL ROM of 228 degrees (normal 240 degrees).  All ROM was measured with a goniometer and repeated three times.  Lower extremity strength, sensation, and reflexes were normal and straight leg raise testing for radicular symptoms was negative.  

At the VA Compensation and Pension (C&P) examination on 9 March 2007, performed 5 months after separation, the CI reported intermittent back pain three times per week, with pain and stiffness, especially in the mornings.  He reported he could perform his daily routine activities without much problem, and denied frequent flare-ups or incapacitating episodes.  Physical examination showed a normal gait.  There was “minimal “TTP of the lumbar area and no TTP of the thoracic spine, without muscle spasm.  Thoracolumbar ROM was 80 degrees flexion and combined ROM of 225 degrees.  The ROM was not painful, there was no change with repetition noted, and maneuvers to elicit radicular signs were negative bilaterally.  Lumbar and thoracic spine X-rays noted normal spinal curvatures.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5237 code (Lumbosacral or Cervical Strain), citing the condition was rated for tenderness.  The VA also assigned a 10% rating using the 5243 code (Intervertebral Disc Syndrome) based on the VA C&P examination 5 months after separation, citing limitation of forward flexion to 80 degrees.  

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) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on all examination(s) proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional 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.

Right Leg Pain Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s right leg condition began during deployment in early 2004.  The CI had a past medical history of right tibial fracture with open reduction and internal fixation with retained hardware in place.  The NARSUM indicated the CI obtained a waiver to join the Army, though there is no documentation of the waiver on his military enlistment physical (MEPS) in January 2003.  The MEPS physical documented that the CI had chronic right leg pain since the ORIF procedure and noted there was a leg length discrepancy.  In July 2003, while in basic training, he began to have right shin pain when running at the point of his screws, which became worse during deployment.  Right leg X-rays showed intact surgical hardware at the site of the fracture.  At an orthopedic evaluation on 8 February 2005, the CI reported increased right lower extremity (RLE) pain after a six mile ruck with persistent pain since then.  A bone scan on 10 February 2005 was abnormal with increased uptake in the area of clinical interest, noted to be possibly due to stress changes or old surgical changes of the tibia.  The MEB forwarded “right leg pain status post open reduction and internal fixation of a right tibial fracture” for PEB adjudication.

At the MEB examination (recorded on DD Form 2807 and 2808) dated 12 May 2005, 5 months prior to separation, the CI reported he continued to have right leg pain.  Physical examination showed the left leg was longer than the right.  

At the MEB orthopedic consult on 25 May 2005, 4 months before separation, the CI reported RLE pain for many years, but reported “not too many problems” until he entered basic training.  The CI reported he lost a shoe insert for the right leg length discrepancy (LLD) since the fracture repair and was unable to ruck march or run due to back and RLE pain, more so because of leg pain.  The physical exam noted good ROM of the right knee and ankle, with good strength.  There was TTP over the tibial surgical site.

At the MEB NARSUM examination on 12 July 2005, 3 months before separation the CI reported right leg pain.  The physical exam noted normal strength, sensation, reflexes and pulses of the lower extremities

At the VA Compensation and Pension (C&P) Spine examination on 9 March 2007, 5 months after separation, the CI reported constant right leg pain since military separation, graded 5/10.  He reported he could perform his daily routine activities without much problem, and denied frequent flare-ups or incapacitating episodes.  The CI was wearing a right shoe insert and was not using any brace or assistive device for ambulation.  Physical examination showed a normal gait.  There was “vague minimal” tenderness over distal part of the right tibia anteriorly with no leg deformities or muscle atrophy noted.  Right ankle and knee ROM were both normal, without pain or change with repetitive motion.  Right tibial X-rays were normal except for the post-surgical changes.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB used an analogous 5003 code (degenerative arthritis) and determined right leg condition existed prior to service and did not assign a compensable rating.  The VA assigned a 10% rating using an analogous 5262 code (tibia and fibula impairment) based on the VA C&P examination 5 months after separation, citing tenderness of the right tibia with residual pain.  

The PEB determined the condition existed prior to service based on the CI’s history of right tibial ORIF prior to entering military service and reported history of chronic RLE pain at the site of the retained surgical hardware since that time.  The Board found no evidence to indicate this was not correct.  The Board next considered whether or not there was evidence of service aggravation.  A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  The CI reported years of chronic right leg pain prior to his enlistment.  During active duty the CI reported increase right leg pain with strenuous physical activity, which may have been in part due to his being without his shoe insert for the LLD.  The post-separation C&P exam noted the CI was again wearing a shoe insert and noted “vague, minimal” tenderness over the surgical site, with full knee and ankle ROM and a normal gait and X-rays noted no permanent change in the right leg.  While the threshold to overcome the presumption of SA is high, “competent medical evidence” is defined by DoDI 1332.38 as “fundamental deductions consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct.”  In this case there is an overwhelming preponderance of evidence that the CI’s right leg pain at the site of the repaired fracture existed prior to service and was temporarily, but not permanently aggravated by military service.  After due deliberation, considering all of the evidence the Board concluded the right leg condition was not permanently aggravated by service beyond the natural progression of the condition and therefore recommends no change in the PEB’s adjudication.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the major depressive disorder, single episode, condition was not unfitting.  The major depressive disorder condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance-based evidence from the record that the major depressive disorder condition significantly interfered with satisfactory duty performance.  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 major depressive disorder, single episode, condition and so no additional disability rating is recommended 

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right leg pain condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended major depressive disorder condition, 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.  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 20140528, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

16 NOV 2016

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20160016876 (PD201402561)

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
(  ) DVA