RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02599
BRANCH OF SERVICE:  Army	BOARD DATE:  20140917
SEPARATION DATE:  20050223

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (31B26/Military Police Working Dog Handler) medically separated for chronic low back pain (LBP).  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U2/L3/H3/E2 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded low back condition, characterized as “degenerative spondylosis of the spine” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (see rating chart below).  The Informal PEB adjudicated “chronic radiating low back pain with insidious onset” as unfitting, rated at 10%.  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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting low back condition is addressed below; additionally, the right ankle, bilateral knees, right shoulder and hearing loss conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20041101	VA - (<1 Mo. Pre -Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5299-5237	10%	DDD Lumbar Spine	5237	10%	20050211	
			DDD C-Spine	5237	10%	20050211	
Traumatic Arthritis 
Right Ankle 	Not Unfitting	Rt Ankle Strain	5271	0%	20050211	
Mild Degenerative Joint Disease Bilateral Knee	Not Unfitting
	Retropatellar Pain Syndrome Left Knee	5019	0%	20050211	
		Retropatellar Pain Syndrome Right Knee	5019	0%	20050211	
Unstable Right Shoulder	Not Unfitting	Rt Shldr Strain	5201	0%	20050211	
Rightt High Frequency Hearing Loss & Tinnitus	Not Unfitting	Tinnitus	6260	10%	20050211	
		Hearing Loss, Rt Ear	6100	0%	20050211	
Other x 0 (Not in Scope)	Other x 5 (Not in Scope)	20050211	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20050330 (most proximate to date of separation).

ANALYSIS SUMMARY:

Chronic Radiating Low Back Pain.  The narrative summary (NARSUM) notes the CI had a history of low back problems since 2001 due to a twisting injury of his back.  Radiographs of the lumbar spine on 15 October 2001 indicated degenerative joint disease (DJD).  He was treated conservatively and deployed twice on profile.  Prior to the second deployment X-rays showed degenerative disc and joint disease of the lumbar spine that was not changed from the noted earlier X-rays.  During the second deployment the CI’s back conditioned worsened.  Upon return from deployment a magnetic resonance imaging of the lumbar spine performed on 1 June 2004 noted lumbar degenerative disc disease and DJD with no spinal canal stenosis or nerve impingement, but with narrowed spinal nerve exits on the left (neuroforaminal narrowing).  At a spine clinic evaluation dated 6 July 2004 the CI reported LBP that radiated to his left hip and anterior thigh, but not below the knee.  He denied numbness or weakness of the bilateral lower extremities (LE) or other neurological problems.  The examination noted painful, mildly limited lumbar extension, but was otherwise normal, with a non-antalgic gait and normal strength, sensation and reflexes.  The examiner noted that the CI’s condition had worsened despite conservative treatment, but there was no indication for surgery and therefore recommended a MEB.  There were no incapacitating episodes due to the back condition documented in the service treatment record.

At the MEB examination on 23 September 2004 (5 months prior to separation) the CI reported back pain.  The MEB physical exam noted tenderness of the lumbar spine with normal strength, sensation and reflexes.  Straight leg raise (SLR) testing was negative bilaterally.  Physical therapy measured range-of-motion (ROM) for the MEB dated 1 September 2004, noted thoracolumbar (TL) flexion of 85 degrees, 85 degrees, 90 degrees (normal 90 degrees); extension of 15 degrees, 15 degrees, 15 degrees (normal 30 degrees); and  combined TL ROM of 205 degrees (normal 240 degrees).  All ROM was noted to be “pain limited.”

At the VA Compensation and Pension (C&P) examination dated 11 February 2005 (less than 2 weeks pre-separation), the CI reported back pain that radiated to his “hips, buttocks, and down his right leg” and use of anti-inflammatory medication.  The exam noted a normal gait and station.  There was normal sensation and reflexes of both LE and no evidence of nerve impingement on testing (Lasegue, SLR).  Back ROM was flexion of 90 degrees without pain; extension to 20 degrees with pain; and a combined ROM of 205 degrees.  The examiner noted there was no additional loss of ROM, weakness, fatigue, or lack of endurance with five repetitions of ROM or flare-ups.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5237 (analogous to lumbosacral strain).  The VA rated it at 10%, coded 5237 (lumbosacral strain).  The Board agreed that the evidence in record supported the 10% rating according to the current Veterans Affairs Schedule for Rating Disabilities (VASRD) general formula for rating the spine based upon combined TL ROM of greater than 120 degrees but not greater than 235 degrees.  The Board reviewed to see if the next higher evaluation of 20% was achieved, specified as TL flexion of not greater than 60 degrees, or combined TL ROM of not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, but this was not supported by the evidence.  

The Board also reviewed to see if there was any path to a higher evaluation than 10%, but there were no incapacitating episodes documented or evidence of ratable peripheral nerve impairment in record that would provide for additional or higher rating of the back condition.  Notes in the service treatment record (STR) indicated the CI experienced back pain that radiated to his left thigh, but there was no left LE weakness, reflex abnormality, or sensory deficit noted.  The VA C&P noted back pain the radiated to both hips and the right LE, also without any evidence of LE weakness or sensory impairment.  The reported radiating pain to either or both LE from the back condition is subsumed under the general spine rating criteria, which specifies “with or without symptoms such as pain (whether or not it radiates)” and there was no evidence of motor weakness or sensory deficit associated with functional impairment to recommend 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 LBP condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right ankle, bilateral knees, right shoulder and right hearing loss and tinnitus conditions were 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.

Right Ankle Condition.  There are no treatment notes in the STR regarding the right ankle condition.  Orthopedic evaluation for the MEB dated 8 September 2004 noted that the CI reported a past history of bilateral ankle sprains without instability but with frequent non-painful “snapping.”  The examination of the both ankles noted no tenderness or instability, ROM was near normal without pain and a non-antalgic gait was noted.  At the MEB NARSUM examination (5 months prior to separation), the CI reported right ankle pain since a fracture in 1998 and the examination cited the orthopedic evaluation noted above.  The VA C&P examination (2 weeks prior to separation), noted no report of ankle symptoms by the CI.  The examination noted normal gait and station, with normal ankle exam bilaterally, except for noted grinding of both ankles.  The examiner noted there was no additional loss of ROM, weakness, fatigue, or lack of endurance of either ankle with five repetitions of ROM or flare-ups.  The original VARD rated the right ankle at 0%, coded 5271 (limited ankle motion).

Bilateral knee conditions.  There are no treatment notes in the STRs regarding the bilateral knee conditions.  Orthopedic evaluation for the MEB dated 8 September 2004 (5 months prior to separation), noted that the CI reported occasional left knee instability due to a prior hyperextension injury, without joint effusion or locking.  The examination noted a non-antalgic gait and normal left knee ROM, without effusion or tenderness.  Testing for anterior instability was negative, but a mild degree of instability was noted on testing the inner aspect of the knee joint (valgus instability).  The MEB NARSUM noted no report of knee symptoms by the CI and cited the orthopedic examination of the left knee noted above.  Knee X-ray images dated 8 September 2004 were noted to show mild bilateral joint space narrowing.  

At the VA C&P examination (2 weeks prior to separation), the CI reported knee pain worsened by running.  The examination noted normal gait and posture with bilateral knee ROM (extension-flexion) of 0 degrees to 135 degrees (normal 0 degrees to 140 degrees) without lateral or anterior instability or evidence of cartilage injury.  There was patellar pain with motion, without swelling or crepitus.  The examiner noted there was no additional loss of ROM, weakness, fatigue, or lack of endurance of either knee with five repetitions of ROM or flare-ups.  The original VARD rated retropatellar pain syndrome of each knee at 0%, coded 5019 (bursitis).

Right Hearing Loss and Tinnitus.  At the Otolaryngology (ENT) evaluation for the MEB the CI reported longstanding hearing loss and tinnitus (ringing) in his right ear due to a remote explosion on his right side (1988) and ongoing noise exposure from barking dogs, as well as non-occupational exposure due to recreational hunting since childhood.  He denied any other pertinent head ear, nose or throat symptoms.  On examination his ears were normal.  Audiogram dated 11 August 2004 noted high frequency hearing loss (HFHL) at 4000 Hz on the right of 60 decibels (dB), with average dB of 24 (23.75) at 1000, 2000, 3000 and 4000 Hz.  Speech discrimination was normal bilaterally.  The audiologist recommended an H2 profile.  The ENT specialist noted that the audiogram was unchanged from a previous one dated 16 May 2003 and provided an H3, J2 profile, excerpted below:

Further exposure to noise is hazardous to health.  No duty or assignment to noise levels in excess of 85 dBA or weapon firing (not to include firing for preparation of replacements for overseas movement (POR) qualification or annual weapons qualification with proper ear protection.  Annual hearing test required.  

ENT indicated that the CI met retention standards according to AR 40-501, 3-10.

During the MEB NARSUM examination dated 23 September 2004, the CI reported hearing loss.  Hearing testing indicated normal hearing to 3000 Hz bilaterally with a 55 dB threshold at 4000 Hz.  The left ear was noted to have a 25 dB threshold at 4000 Hz, with normal speech discrimination in both ears.  The MEB examiner noted that the audiology and ENT evaluations diagnosed HFHL and tinnitus on the right and indicated that the right hearing loss condition met retention standards with a J2 profile.

During the VA C&P examination the CI reported bilateral HL and tinnitus, with difficulty hearing on his right side in a crowd.  He denied using a hearing aid.  Audiogram noted normal hearing to 3000 Hz and a 65 dB threshold at 4000 Hz, with an average dB of 26 at 1000, 2000, 3000 and 4000 Hz.  Speech recognition was 100% bilaterally.  The original VA Rating Decision rated the hearing loss condition 0%, coded 6100 and tinnitus 10%, coded 6260 (recurrent tinnitus).

The Board noted that there was no commander’s statement in the records available.  Neither the right ankle nor bilateral knee condition was profiled, but the right shoulder condition was given a U2 profile.  None of these conditions were judged to fail retention standards.  There was no performance based evidence from the record that any of these three conditions significantly interfered with satisfactory duty performance.  The Board noted that both the mild right shoulder instability existed for years before the CI entered the MEB process for his back condition, during which time he was able to perform the duties of his MOS, including during two deployments.  The hearing loss was given a permanent H3 profile during the MEB process but the ENT evaluation recommended retention with duty limitations without geographic considerations needed.  The CI did not require a hearing aid and was noted to have normal speech discrimination by both the service and VA audiologists.  The Board concluded that though the CI would have to be utilized within his profile limitations, they did not preclude continued military service.  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 right ankle, bilateral knee, right shoulder conditions or right hearing loss and tinnitus conditions.

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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right ankle, bilateral knees, right shoulder and right hearing loss and tinnitus 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 20140529, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150006237 (PD2014002599)

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