RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02800
BRANCH OF SERVICE:  Army	Separation Date:  20011012

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Attack Helicopter Repairer) medically separated for “chronic low back pain (LBP),” rated at 0%.   

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 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 20010522	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5299-5295	0%	Degenerative Joint Disease (DJD), Lumbar Spine, L4-L5	5293	20%	20020131	
Hearing Loss	Not Unfitting	Tinnitus	6260	10%	20020131	
		Left Ear Hearing Loss	6100	0%	20020131	
Flexible Pes Planus	EPTS, Not Service Aggravated	No VA Placement	
Other x 0 (Not In Scope)	Other x 0 	
RATING:  0%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20020329 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

LBP Condition.  The CI developed an insidious onset of LBP in August 1998.  He reported aching and pain in the morning which was exacerbated by strenuous physical activities.  A lumbar spine X-ray done in September 1999 showed a decreased disc space at the L4-5 region. Despite being evaluated by Physical Therapy (PT) and Orthopedics, the CI continued with chronic LBP.  He was given a permanent profile for LBP.  The commander’s statement in March 2001 focused on the back condition and noted that this interfered with his MOS.  The MEB Narrative Summary (NARSUM) exam performed approximately 7 months prior to separation documented that the CI’s pain localized to the central portion of the lumbar spine.  He also reported that his symptoms of significant back morning stiffening and difficulty sleeping at night were secondary to the LBP.  The back pain was aggravated by push-ups, sit-ups and running.  The MEB NARSUM physical exam findings are summarized in the chart below. The VA Compensation and Pension (C&P) exam approximately 4 months after separation documented that the CI had discomfort that radiated down his legs into his feet with numbness and tingling.  He also had increased numbness and tingling if he crossed his legs one over the other.  He needed to alter his position to alleviate his discomfort.  The VA C&P physical exam findings are summarized in the chart below.

There were range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	
MEB Form 2808 ~8 Mos. Pre-Sep
	MEB ~7 Mos. Pre-Sep
	VA C&P ~ 4 Mos. Post-Sep
	
Flexion (90 Normal)	
Decreased flexion- bending to touch knees only	Forward Flexion from a standing position, CI can only reach within 1 ft. from the floor;	55*	
Extension (30)			-	
R Lat Flexion (30)			20	
L Lat Flexion (30)			25	
R Rotation (30)				
L Rotation (30)				
Combined (240)		-		
Comment		Gait nml; motor 5/5; reflexes nml; increased back pain with lateral flexion; pain with hyperextension spine; toe heel walk with difficulties	*Pain radiated into left hip; Wears magnet brace; tenderness lower lumbosacral paraspinous region L>R	
§4.71a Rating 				
5292	20%	20%	20%	
5293	0%	0%	20%	
5295	10%	10% ( PEB 0%)	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP condition as 5299 analogous to 5295 Lumbosacral strain and rated at 0% - With slight subjective symptoms only.  The VA coded the DJD Lumbar Spine, L4-L5 condition as 5293 Intervertebral disc syndrome and rated at 20% - Moderate; recurring attacks.  There was ample evidence that the CI had decreased flexion which was limited to bending to touch the knees only.  The MEB examiner documented that during forward flexion from a standing position, the CI could only reach within 1 ft. from the floor the CI.  The VA measured flexion was limited to 55 degrees.  The Board reviewed the criteria for coding 5292 Spine, limitation of motion of, lumbar and the 20% rating of Moderate.  The Board agreed that the CI’s condition most closely aligned with the coding of 5292 and rating of 20%.  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 Chronic LBP condition coded 5292.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were flexible pes planus and hearing loss.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is preponderance of the evidence but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Flexible Pes Planus Contended Condition:  The IPEB documented that this condition was noted on the 14 July 1994 Military Entrance Physical.  This condition was never profiled nor was this condition implicated in the Commander’s Statement.  This statement focused solely on the CI’s back condition.  This condition was not judged to fail retention standards.

Hearing Loss Contended Condition:  This condition was never profiled nor was this condition implicated in the commander’s statement.  This statement focused solely on the CI’s back condition.  This condition was not judged to fail retention standards.  The audiology examinations on 9 February 2001 and on 26 February 2001 showed that the CI’s left ear average loss was 35dB at the pure tone thresholds of 1000-4000Hz; and the right ear average loss was 8.75 and (all less than 55dB) at the pure tone thresholds of 1000-4000Hz.  At the VA C&P exam, approximately 4 months after separation the Audiologist noted that audiograms from 1994 and 1997 indicated that the right ear hearing was within normal limits and the left ear hearing loss was mild to moderate sensorineural hearing loss.  The audiology exam showed that the CI’s left ear average loss as 30dB at the pure tone thresholds of 1000-4000Hz; and the right ear average loss was 7.50 and (all less than 55dB) at the pure tone thresholds of 1000-4000Hz.  The speech recognition scores were 100% for the right ear and 98% for the left ear.  Impedance testing indicated normal tympanic membrane mobility bilaterally and pure-tone and speech testing indicated hearing within normal limits in the right ear and mild to moderate sensorineural hearing loss in the left ear with excellent word recognition when tested in quiet.  Tinnitus was subjectively matched to the right ear 6000Hz at 60dB and left ear 8000Hz at 70dB.  The CI wore a hearing aid for his left ear only.  Application of VASRD §4.86a and §4.85 yields a 0% rating.  The CI had no history of phonophobia, vertigo or other evidence to support Meniere’s syndrome (endolymphatic hydrops) which would yield a higher rating. Both the flexible pes planus and hearing loss conditions were reviewed and considered by the Board.  There was no indication 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 flexible pes planus and hearing loss contended conditions and, therefore, no additional disability ratings can be 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 chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5292IAW VASRD §4.71a.  In the matter of the contended flexible pes planus and hearing loss 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.  
The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic LBP	5292	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140606, 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, AR20160004018 (PD201402800)

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