RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02589
BRANCH OF SERVICE:  Army	BOARD DATE:  20150724
SEPARATION DATE:  20070518

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Field Artillery Firefinder Radar Operator) medically separated for a lumbar spine condition and a cardiac condition.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3L3H3 profile and referred for a Medical Evaluation Board (MEB).  The “degenerative disk disease with persistent lumbago” and “coronary artery disease, status post non q-wave myocardial infarction” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (hearing loss) for PEB adjudication.  The Informal PEB adjudicated the lumbar and cardiac conditions as unfitting, rated 10% and 10% respectively with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB).  The FPEB reviewed the information, but made no change to the original findings and ratings.  The CI withdrew his request for a FPEB 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 20070406	VA* (~3 Yrs, 11 Mos. and 1 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5242	10%	Lumbar Spondylosis…	5242	20%	20070306	
Coronary Artery Disease…	7006	10%	Cardiomyopathy…	7020	30%	20070306	
			Hypertension	7101	10%	20070306	
Hearing Loss	Not Unfitting	Hearing Loss, Bilateral	6100	0%	20030610	
		Tinnitus a/w Hearing Loss	6260	10%	20030610	
				10%	20030610	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2 (equals SC, NSC & deferred)	
RATING:  20%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20070524 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The earliest entry in the service treatment record (STR) documents an onset of back pain with lifting sand bags in March 2003.  This responded to conservative management and the CI experienced a recurrence of pain with pre-mobilization training in July 2005.  He deployed with his unit to Iraq, but required medical evacuation for back pain in August 2006 (9 months prior to separation).  Imaging revealed degenerative disc disease (L4/5 and L5/S1 [disc protrusion with “moderate” bilateral foraminal narrowing at L5/S1]); but, surgery was not recommended.  Associated radicular symptoms improved, but persistent back pain prevented resumption of full duties.  Gross range-of-motion (ROM) observations were characterized as normal with notation of painful motion.  An antalgic gait was documented in earlier STR entries, but was documented as normal in numerous subsequent entries.  There are numerous entries documenting normal neurologic findings, with none to the contrary.  There is no STR documentation of more significant ROM limitation or of periods of incapacitation.

The narrative summary (NARSUM) was conducted on 23 March 2007 (2 months prior to separation); and, documented “no significant improvement in his low back pain” with no indication of significant radicular pain or symptoms; citing only profile restrictions as limitations.  The NARSUM physical examination recorded a normal gait, normal spinal contour, the absence of tenderness, and normal neurologic findings.  The NARSUM cited physical therapy ROM measurements of 45 degrees flexion (normal 90) and combined ROM of 185 degrees (normal 240), annotating painful motion.

A VA Compensation and Pension (C&P) examination was conducted on 6 March 2007 (a month prior to separation), and documented constant pain rated 4/10 limiting the ability to carry more than 15 pounds.  The VA physical examination recorded “no evidence of radiating pain on movement,” the absence of tenderness or spasm, and normal neurologic findings.  The VA measured ROM was 60 degrees flexion and 160 degrees combined, annotating painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to code 5242 (degenerative arthritis of the spine) was supported by AR 635-40, but was not compliant with VASRD §4.71a criteria for the ROM measurements in evidence.  The VA’s 20% rating coded 5242 cited the C&P flexion of 60 degrees.  Both the VA’s 60 degree and MEB’s 45 degree measurements of flexion meet §4.71a criteria for a 20% rating.  There was no evidence of ratable peripheral nerve impairment which would support an additional rating, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the lumbar spine condition under code 5242.

Cardiac Condition.  The STR and NARSUM document a presentation for exertional chest pain and a diagnosis of coronary artery disease in November 2006 (6 months prior to separation).  This was managed with coronary stenting.  The CI, however, continued to experience exertional chest pain and follow-up angiography did not reveal any disease requiring additional intervention.  A stress test was performed in March 2007 (2 months prior to separation) which was interpreted as “not showing any evidence of exercise induced ischemia, despite the complaints of chest pain” with metabolic equivalents (METs) recorded as 10.1.  Key evidence in this case is a cardiac ECHO (ultrasound) which was conducted 13 March 2007 (2 months prior to separation, 10 days prior to the NARSUM).  This demonstrated some abnormal wall motion (inferior and posterior hypokinesis; suggesting prior damage) with a normal ejection fraction of 60% (indicating normal pumping ability of the heart).  Additional findings, however, were “left ventricular hypertrophy [wall thickening]” and “left atrial enlargement.”  Although prior X-ray studies demonstrated a normal heart size and there was no indication of atrial or ventricular hypertrophy by electrocardiograms, there is no definitive imaging study contradicting the above findings.

The NARSUM documented that the “chest pain significantly improved with [stenting] ... [but] ... he continued to have intermittent substernal chest pain with exertion ....”  The NARSUM examiner cited details of the catheterization study and the results of the stress test from above; but, did not present the findings from the recently performed ECHO.  The prior to separation VA C&P examiner (same as cited for lumbar condition) documented “recurrent chest pain with minimal exertion ... as often as 3 times a week ... lasting 5 minutes ... must stop all activities and rest.”  A report of the findings from the above ECHO study was attached.

The Board directed attention to its rating recommendation based on the above evidence.  Various codes available in VASRD §4.104 might be considered for rating, including the PEB’s choice of 7006 (myocardial infarction), the VA’s choice of 7020 (cardiomyopathy), or the most clinically accurate 7005 (coronary artery disease).  All potentially applicable codes, however, apply the same criteria for the ratings under consideration in this case.  The 10% rating language is, “Workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required.”  That for 30% is, “Workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or [emphasis added]; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.”  The PEB’s 10% rating cited the 10.1 METs evidence and “continuous medication required,” without reference to the above ECHO study (performed 3 weeks prior to PEB proceedings).  The VARD referenced the ECHO findings “left ventricular and atrial enlargement” and conferred 30% “based on echocardiogram evidence of cardiac hypertrophy.”  After careful consideration, members agreed that 30% criterion of echocardiogram evidence of cardiac hypertrophy or dilation was sufficiently supported by the ECHO evidence.  After due deliberation considering all evidence and with deference to reasonable doubt, the Board recommends a 30% rating for the cardiac condition under code 7006.

Contended Hearing Loss.  The STR documents hearing damage in 1993 from a range accident.  The CI was profiled H3, but was granted a hearing waiver in 2005.  The NARSUM indicates that the CI had been found fit for duty by a Medical MOS Retention Board (MMRB), although those proceedings are not in evidence.  An audiology consultant during MEB proceedings stated, “Cleared for duty for hearing.”  Audiology testing during the MEB on 5 December 2006 yielded a puretone threshold average (as applicable to rating IAW VASRD §4.85) of 30 for the right ear and 40 for the left ear.  The NARSUM acknowledged profile limitations for hearing protection and annual hearing exams, but the condition was forwarded as meeting retention standards.  The commander’s performance statement acknowledged the hearing loss condition, but the elaborated limitations were applicable only to the “heavy physical demands of his MOS.”

The Board directed attention to its recommendation based on the above evidence; and, its main charge with respect to this condition is an assessment of the fairness of the PEB’s determinations that it was not unfitting.  The Board’s threshold for countering 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.  The fitness implications of the hearing loss had been well addressed by the prior MMRB and re-addressed in the MEB proceedings, and there was no evidence that the condition was worsening or unstable.  It was judged to meet retention standards and not implicated by any limitations documented by the commander.  Furthermore, it was 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.”  All members agreed that there was no performance based evidence suggesting that it significantly interfered with duty performance.  It is incidentally noted that the audiology evidence does not support a compensable rating for hearing loss IAW §4.85, and the tinnitus rated by the VA is not within the Board’s scope of review.  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 hearing loss condition; thus it cannot be recommended for an additional disability rating.

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, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the cardiac condition, the Board unanimously recommends a Service disability rating of 30%, coded 7006 IAW VASRD §4.104.  In the matter of the contended hearing loss 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.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease, Lumbar Spine 	5242	20%	
Coronary Artery Disease	7006	30%	
Hearing Loss	Not Unfitting	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140527, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB							
MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160003685 (PD201402589)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA