RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03593
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090526

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Military Police, medically separated for “degenerative arthritis of the lumbar spine,” with a disability rating of 10%.

CI CONTENTION:  The CI requests a review of all conditions.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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:  

SERVICE PEB - 20090212	VARD - 20101020	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Lumbar Spine	5242	10%	Degenerative Disc Disease, Lumbar Spine	5242	10%	20100923	
Lacunar Infarct	Not Unfitting	No VA Placement	
Sensorineural Hearing Loss		Tinnitus	5260	10%	20101007	
		Bilateral Hearing Loss	6100	0%	20101007	
Joint Pain Localized in the Knee		Chronic Musculoligamentous Strain, Left Knee	5260-5024	10%	20100923	
Sleep Apnea		Obstructive Sleep Apnea	6847	50%	20100923	
Presbyopia		No VA Placement	
Esophageal Reflux		Dyspepsia		NSC	20100923	
Adjustment Disorder Related to Marital Problems and Occupational Problems, Resolved		No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Spine.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in November 2005 after removing a suspect from a vehicle.  Lumbar and thoracic spine X-rays performed on 21 November 2005 showed a normal lumbar spine and minimal degenerative changes of the thoracic spine.  The CI reported LBP with numbness of his toes bilaterally and lumbar MRI on 12 January 2006 was normal.  Lumbar MRI was repeated on 8 June 2007 due to increase in LBP and showed bulging intervertebral discs at L4-5 and L5-S1 with narrowing of the bilateral neuroforamina (spaces through which the spinal nerve roots pass) at L5-S1.  Lower extremity (LE) electrodiagnostic studies (EMG/NCV) performed on 27 July 2007 were negative for radiculopathy.  Orthopedic and pain medicine evaluations recommended no surgery and concluded that the CI’s symptoms were related to degenerative changes of the spine and both specialists recommended treatment with medication and continued physical therapy.  For the MEB, repeat lumbar MRI studies were performed on 2 May 2008 and showed no change from the 8 June 2007 MRI study and repeat electrodiagnostic studies (EMG/NCV) were also performed and were negative for lumbar radiculopathy.  The MEB forwarded “bulging intervertebral disc” for PEB adjudication.

The range of motion (ROM) examinations 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)	PT/MEB/ ~8 Mos. Pre-Sep
(20080923)	VA ~16 Mos. Post-Sep
(20100923) 	
Flexion (90 Normal)	90	85	
Combined (240)	225	230	
Comments	Pain on motion of all ROM	ROM limited by pain/ tenderness on the right	
§4.71a Rating	10%	10%	

At the MEB NARSUM examination dated 23 October 2008, 7 months prior to separation, the CI reported LBP treated with medication (Percocet) for relief.  The pain was aggravated by activity and relieved by rest and stretching exercises.  The pain prevented him from running, wearing interceptor body armor, lifting or carrying a load, or riding in a tactical vehicle.  Physical examination showed normal lower extremity strength, sensation, and reflexes.  The CI had normal heel, toe and tandem gait.  There was slight guarding, but no spasm.  Straight leg raise (SLR) testing was negative for radiating symptoms.  Thoracolumbar ROM was performed for the MEB by physical therapy on 23 September 2008 as recorded in the chart above.    

At the 23 September 2010 VA Compensation and Pension (C&P) evaluation, performed 16 months after separation, the CI reported LBP without radiation, described as stable.  He denied lower extremity numbness, paresthesias, or weakness.  The pain was treated with medication (methocarbamol and gabapentin).  There were no incapacitating episodes due to the LBP.  Physical examination showed normal gait, posture, contour with no spasm or guarding and normal LE strength, sensation, and reflexes.  There was tenderness with positive straight leg raise testing on the right.  Thoracolumbar ROM was limited by pain as recorded in the chart.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the degenerative arthritis of the spine condition 10% coded 5242 (degenerative arthritis of the spine), citing tenderness and mild guarding.  The VA also rated the degenerative arthritis of the spine condition 10% coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination 16 months after separation, citing painful, limited ROM.

The Board agreed that a 10% rating, but no higher, was justified for combined ROM (greater than 120 degrees but not greater than 235 degrees), with painful motion reported on the PT/MEB (NARSUM) and VA examinations proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  After due deliberation, and 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 degenerative arthritis of the spine condition.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported intermittent pain radiating to his lower extremities and numbness of his toes, however the electro-diagnostic studies showed no evidence of neuropathy or radiculopathy and the exam of the lower extremities was normal at the MEB NARSUM and VA exams.  Radiating pain from the back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)” and there was no evidence in this case that motor or sensory deficit existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis 

Contended PEB Conditions.  Lacunar infarct, sensorineural hearing loss (SNHL), joint pain localized in the knee, sleep apnea, presbyopia (age related vision changes), gastroesophageal reflux (GERD), and adjustment disorder related to marital problems and occupational problems, resolved.

The commander’s statement implicated the CI’s back condition and SNHL as disqualifying him from his current MOS, but recommended that the CI be evaluated by the MEB for potential retention on active duty, presumably with a reclassification of his MOS.  The permanent L3H3 profile listed LBP and SNHL in both ears with physical limitations of no ruck/road marching and no exposure to loud noise without hearing protection noted and “reassignment to (or retention in) non-noise hazardous AOC/MOS” noted.

OSA.  The CI was diagnosed with OSA by a sleep study and treated with CPAP.  At an ENT visit in May 2007, the examiner indicated that the CI could be retained if the OSA was improved enough with treatment and could be deployed at the Commander’s discretion with CPAP which requires availability of electricity every night.  The CI underwent surgery for a deviated nasal septum with reduction of nasal tissue which improved his night time breathing difficulties significantly.  At an ENT follow-up 14 October 2008, the sleep specialist indicated that he did not think the CI needed to be on profile for his mild residual sleep apnea and he could use CPAP as needed.

The OSA, lacunar infarct, knee, age-related vision changes, GERD, and “adjustment disorder …, resolved” conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at separation.  Additionally, the PEB determined that the, “adjustment disorder…, resolved” was a “condition not constituting a physical disability IAW DoDI 1332.38, Enclosure 5” and was not eligible for rating.

SNHL.  MEB NARSUM examination dated 23 October 2008, 7 months prior to separation, noted that the CI had been diagnosed with bilateral SNHL.  The CI was given bilateral hearing aids though audiology evaluations noted good speech discrimination bilaterally.  The CI was placed on an H3 profile in October 2007 and referred for an MOS Military Review Board (MMRB).  However, because of his back problems the MMRB would not allow him to appear before them until the back issue was resolved.  The MEB NARSUM recommended that the SNHL met retention standards with recommended reclassification.  The MEB forwarded “sensorineural hearing loss (meets retention standards)” for PEB adjudication.  The PEB adjudicated the SNHL along with the other contended conditions noted above and stated the conditions met retention standards and did not “pose significant physical profile restrictions.  The Board concluded from this that the SNHL condition could have been and may have been accommodated by reclassification of the CI’s MOS, but this was not a sufficient remedy for the physical limitations posed by the back condition, which included no lifting more than 30 pounds and no ruck/ road marching.  Thus, although the SNHL was profiled, there was not a preponderance of evidence to overcome the PEB’s fitness determination for the SNHL condition.  After due deliberation, and 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 SNHL condition and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the degenerative arthritis of the spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended lacunar effect, sensorineural hearing loss, joint pain localized in the knee, sleep apnea, presbyopia, esophageal reflux, and adjustment disorder related to marital problems and occupational problems, resolved 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, 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 20140624, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160014207 (PD201403593)

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.

 						         
Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA