RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02619
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060101

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-4, Cannon Crewmember, medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards, but he was authorized to perform an alternate physical fitness test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain secondary to L5 spondylolysis and anterolisthesis of L5 on S1” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded seven other conditions (neck pain, thoracic spine pain, numbness and tingling of the hands, reactive airway disease, adjustment disorder, learning disorder, and bilateral hearing loss) for PEB adjudication.  The Informal PEB adjudicated his low back pain as unfitting and rated it 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 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:  

IPEB – Dated 20051207	VA* - (~2 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5239	10%	Lumbosacral Spine, Degenerative Disc Disease	5242	10%	20051017	
Degenerative Joint Disease of the Thoracic Spine…	Not Unfitting					
Intermittent Neck Pain	Not Unfitting	Cervical Strain	5237 	10%	20051017	
Moderate…Hearing Loss	Not Unfitting	Tinnitus	6260	10%	20051017	
		Hearing Loss	6100	0%	20051017	
Intermittent Subjective Numbness and Tingling of the Hands	Not Unfitting	Left Hand…Neuropathy	8516	NSC	20051017	
		Right Hand…Neuropathy	8516	NSC	20051017	
Intermittent Reactive Airway Disease	Not Unfitting	Reactive Airway Disease	6602	NSC	20051017	
Adjustment Disorder…	Not Unfitting	PTSD…	9411	NSC	20051017	
Learning Disorder	Not Unfitting	No VA Placement	
Other x 0 (Not In Scope)	Other 1  	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060126 (most proximate to date of separation (DOS)). 

ANALYSIS SUMMARY:  The VASRD in effect at the time rates the thoracic spine and the lumbar spine as a single thoracolumbar spine condition, and therefore the unfitting low back pain and the not unfitting DJD of the thoracic spine are considered together.  

Back Condition (Low Back Pain and DJD of the Thoracic Spine.  The narrative summary and record noted onset of lower back pain in October 2004 due to injury.  Non-surgical treatment with occupational and physical therapy, epidural steroid injections, chiropractic, nonsteroidal anti-inflammatory medications, muscle relaxants and narcotic analgesics was not effective in rehabilitating the back condition.  At the MEB exam, the CI reported unrelieved back pain with inability to sit or stand in one place for over 15 minutes.  The MEB physical exam performed 2 months before separation noted decreased thoracolumbar range-of-motion (ROM) with pain-limited forward flexion to 50 degrees (normal 90).  There was tenderness with normal heel-to-toe walk and negative straight leg raise (for radicular signs).  Neurologic exam was essentially normal.  Imaging of X-rays and magnetic resonance image documented degenerative disk disease and abnormal findings as noted by the MEB.  Medications included narcotic pain relievers of morphine intermediate release twice a day and oxycodone 5 to 6 times per day.  

At the VA Compensation and Pension exam performed 2 months after separation, the CI reported a similar history and complained that back pain was also aggravated by activities.  He reported no radicular type symptoms, missed work or prescribed incapacitation periods.  The examiner noted that the CI stood the entire time of the exam as sitting down aggravated the back discomfort.  Exam documented a normal gait.  There was tenderness without muscle spasm or abnormal spine curvature.  ROM was normal with forward flexion to 90 degrees and combined to 240 degrees.  Motor, reflex, and neurologic exams of the lower extremities were unremarkable.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB 10% rating under 5239 (spondylolisthesis or segmental instability) indicated the rating was based on tenderness, while the disability description stated “motion limited by pain.”  Since the MEB ROM of 50 degrees forward flexion warrants a 20% rating under the general spine formula, this was application of AR 635-40, B-29 (rating for ROM loss based only on mechanical limitation).  The MEB and VA exams were equally close to the date of separation, while the Service exam was more comprehensive.  Given the entirety of the record, the MEB exam had the highest probative value for rating and best mirrored the CI’s disability picture proximate to separation.  The Board recommends a 20% rating for “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  Including emergency department visits, there were not incapacitating episodes having duration of at least 4 weeks for any higher rating under the formula for rating intervertebral disc syndrome.  There was no objective evidence of peripheral nerve on exams, and pain (whether or not it radiates) is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that no peripheral nerve condition (neuropathy) could be recommended for additional disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that intermittent neck pain, moderate bilateral hearing loss, intermittent subjective numbness and tingling of the hands, intermittent reactive airway disease, adjustment disorder with depressed and anxious mood, and learning disorder 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 contended adjustment disorder and learning disorder diagnoses are conditions or circumstances that do not constitute a physical disability IAW DODI 1332.38, E5 (in effect at the time).  Ideal adjudication would have been as “not compensable.”  The hearing condition was the only contended condition profiled (H2) and none of the contended conditions were implicated in the commander’s statement.  All were judged to meet retention standards.  All conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that any 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 the any 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.  As discussed above, PEB reliance on AR 635-40 for rating the low back condition was likely operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5239 IAW VASRD §4.71a.  In the matter of the contended intermittent neck pain, moderate bilateral hearing loss, intermittent subjective numbness and tingling of the hands, intermittent reactive airway disease, adjustment disorder with depressed and anxious mood, and learning disorder 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain With DJD of the Thoracic Spine	5239	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140206, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXX, AR20160003421 (PD201402619)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

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.   

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:

CF: 
(  ) DoD PDBR
(  ) DVA