RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02991
BRANCH OF SERVICE:  Army	BOARD DATE:  20150211
SEPARATION DATE:  20080904

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Infantry) medically separated for a low back condition.  The 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded to the Physical Evaluation Board (PEB) “low back pain…” as medically unacceptable IAW AR 40-501.  The MEB also forwarded “hypertension, controlled” as medically acceptable for PEB adjudication.  The PEB adjudicated the low back pain (LBP) with “no neurologic abnormality” as unfitting, rated 20%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  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:

Service IPEB – Dated 20080715	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Moderate Severe DDD	5299-5242	20%	DDD of Lumbar Spine	5299-5242	20%*	STR	
Hypertension, Controlled	Not Unfitting	Hypertension	7101	0%	STR	
Other x 0 (Not In Scope)	Combined:  20%	
Combined:  20%		
Derived from VA Rating Decision (VARD) dated 20081103 (most proximate to date of separation [DOS]).
*A VA C&P exam dated 20080502 was in evidence but was not considered (apparently) by the VARD which addressed the CI’s original claim.  Results of that exam are posted below in the range of motion comparison chart, for reference purposes.

ANALYSIS SUMMARY:

Low Back Pain.  The CI had LBP for with shooting pain down the legs for 2 months, which began after a live fire training exercise during which time he carried a large amount of weight.  He had an X-ray series of the lumbosacral spine on 18 July 2007 that was normal.  Physical examination at that time revealed tenderness on palpation with muscle spasm and less than a full range-of-motion (ROM) that was painful of the lower back.  Treatment consisted of a nonsteroidal anti-inflammatory medication and a narcotic.  A muscle relaxant medication was added to the therapeutic regimen a week later and a magnetic resonance imaging (MRI) dated 5 August 2007 revealed moderately severe degenerative changes at L5-S1 with mild/moderate bilateral neural foraminal narrowing and a cystic lesion at the facet joint of L5-S1.  The aforementioned medications were changed and Lyrica (pregabalin-to treat nerve pain) was added to the regimen.  The CI walked with a cane and was referred for physical therapy.  Orthopedic evaluation on 20 August 2007 noted the diagnosis to be lumbar spondylosis (degenerative arthritis) from L2-S1 and recommended a MEB.  A physical therapy assessment noted a non-antalgic gait, forward flexion decreased 50% with bilateral radicular symptoms, extension decreased 50%, right and left side bending decreased 25% and right and left rotation normal with diffuse tenderness centrally overlying L3-L5 with intact sensation, although decreased intensity of the right lower extremity and normal muscle strength.  Pain medication (Tramadol) and physical therapy were helpful.  Pain severity ranged from 4-5/10 to 9/10.  Electrical stimulation treatments were carried out with some relief.  On 29 November Tramadol was discontinued and Lidoderm patches (lidocaine-local anesthetic) were prescribed, which he reported subsequently did not work.  A narcotic, Percocet (oxycodone/APAP), was prescribed, which was replaced by the Physical Medicine and Rehabilitation (PM&R) consultant with Tramadol, Tylenol, Gabapentin (for nerve pain) and Nortriptyline (for nerve pain).  The LBP was exacerbated when the CI helped move a desk.  Pain was described as 10/10 and an examination found negative leg raise (to evaluate nerve root irritation), power, tone and reflexes normal, and mild tenderness on percussion of the back.  An X-ray series of the lumbosacral spine taken after “lifting a table” and dated 28 March 2008 was normal.  A PM&R re-evaluation on 11 April 2008 indicated the MRI did not show stenosis and noted the CI had not tolerated most of the prescribed medication and was able to take Flexeril (cyclobenzaprine) and Percocet, but did not agree with any opiate management for the CI’s condition.  The physical therapy (PT) ROMs performed on 25 June 2008 are in the chart below.

A permanent L3 profile was issued on 1 April 2008 for the moderately severe degenerative changes at L5-S1 with mild/moderate bilateral neural foraminal narrowing with LBP with the limitation of all functional military activities and no individual body armor or ruck sack use.  The commander’s statement dated 9 May 2005 indicated the CI had the degenerative disk disease and lumbago (LBP); and his MOS (Infantryman) requires extensive foot marching, running, and frequent manual labor, which he was unable to do.  The MEB narrative summary (NARSUM) dated 13 June 2008 noted the CI felt LBP while training in April 2007.  After no improvement with bed rest, he had imaging studies that revealed moderate severe degenerative disc disease (DDD) with moderate neural foraminal narrowing.  He was on a temporary profile for 11 months, and after no improvement he was given a permanent profile and transferred to the Warrior Transition Unit.  Pain ranged from 3/10 to 6-7/10 and interfered with sleeping, walking, getting out of bed and also some movements.  Multiple medications were used.  Flexeril helped the spasms and Percocet helped the pain, but the PM&R specialist did not want him to have chronic opioid use.  His medication at the time of the NARSUM examination was Tylenol.  He was not a surgical candidate from an orthopedics perspective, and PT treatment was stopped due to no further progression of care.  Acupuncture was offered but was not accepted.  His profile precluded performance of military duties and physical fitness testing.  The NARSUM referred to DD Form 2807/2808 for the physical examination, part of which was performed at the MEB examination on 28 April 2008, 6 weeks prior to the NARSUM, where the CI reported “I’m in extreme pain from back to feet.”  The remainder of the examination was performed in conjunction with the VA Compensation and Pension (C&P) examination dated 2 May 2008, 5 weeks prior to the NARSUM and 4 months prior to separation.  Examination of the thoracolumbar spine revealed the area was nontender to palpation and no muscle spasm was noted.  Muscle strength was normal.  Straight leg raise was positive 35 degrees on the right.  ROMs are in the chart below; and the neurologic examination was unremarkable.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	CM ~10 Mo. Pre-Sep
	VA C&P ~4 Mo. Pre-Sep
	MEB ~2.5 Mo. Pre-Sep
	
Flexion (90 Normal)	Decreased 50%	90	35*	
Extension (30)	Decreased 50%	15	20*	
R Lat Flexion (30)	Decreased 25%	30	20*	
L Lat Flexion (30)	Decreased 25%	30	25*	
R Rotation (30)	Normal	30	30*	
L Rotation (30)	Normal	30	30*	
Combined (240)	-	225	160	
Comment	Increased radicular symptoms both lower extremities poster to the knee; diffuse tenderness central L3-L5; neurologic exam-normal with less sensation of the RLE	Extension was limited by pain; standing flexion was limited to 80⁰ by pain; no additional limitations from pain, fatigue weakness or lack of endurance following repetitive use.	Localized tenderness and muscle spasm were present; no change in flexion after 3 repetitions; -2⁰ change in extension after 3 repetitions; 
*measurements for rating based on the VASRD vary from actual measures	
§4.71a Rating	-	10% more likely than 20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB applied a 20% rating using code 5299-5242 for moderate severe DDD with a forward flexion of 36 degrees.  The VA likewise assigned a 20% rating using code 5299-5242 for DDD of the lumbar spine with foraminal narrowing and based its rating on the examination of 25 June 2008 rather than its examination of 2 May 2008.  The VARD noted that the CI failed to report for an examination on 1 October 2008.  While the VA C&P examination 4 months prior to separation had essentially normal ROM’s with some limitations of motion due to pain, the examination dated 25 June 2008 was closer to separation and was more detailed than the VA C&P examination.  By preponderance of evidence, the Board must establish a functional impairment linked to fitness in order to recommend a separate rating for a radiculopathy associated with unfitting spine conditions; a threshold clearly not reached by the evidence in this case.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.”  Therefore, the Board favors retention of the 20% rating, albeit the Board found no evidence to account for the difference in measurements between the VA and PT examinations; and the Board was unable to find a route to a higher rating in the absence of incapacitating episodes.  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 LBP condition.

Hypertension.  The Board’s main charge is to assess the fairness of the PEB’s determination that hypertension 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.  Treatment of the hypertension was controlled with daily medication, which was instituted on 25 October 2007 after 5 days of elevated blood pressure measures suggested to be related to his lower back pain.  Although the blood pressure readings were elevated on several readings thereafter when back pain was significant, the blood pressure was found to be normal when three readings at the same visit were taken including those at the subsequent MEB and the VA C&P examinations.  The hypertension was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All of the aforementioned was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the hypertension condition 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 hypertension condition and so no additional disability rating is 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20140616, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150010992 (PD201402991)

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