RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03648
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070518

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard, E5, M1 Armor Crewman and Motor Transport Operator, medically separated for “right testicular pain” and “chronic low back pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  The CI also contends posttraumatic stress disorder, post-concussive headaches and chronic low back pain.  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 based on 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 - 20070419	VARD – 20071213	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Testicular Pain	8799-8730	10%	S/P Surgery Right Testicular Torsion	7524	0%	20070326	
Chronic Low Back Pain	5299-5242	0%	DDD Lumbar Spine	5242	10%	20070326	
Anxiety Disorder NOS	Not Unfitting	PTSD	9411	50%	STR	
Headaches	Not Unfitting	Post Concussive Headaches	8100	30%	20070326	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:

Right Testicular Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered right side groin/testicular pain as the result of an IED blast in Iraq on 20 July 2005.  CT [computed tomography] scans were negative for any type of scrotal or testicular injury.  He was treated with epidural steroid injections, pain medication and nonsteroidal anti-inflammatory drugs (NSAIDs).  Idiopathic testicular pain without correctable surgical pathology was diagnosed.  At an internal medicine examination on 25 October 2005, the CI continued to report groin/testicular pain despite pool therapy, multiple pain medications and antibiotics.  The CI was continued on pain medication and antibiotics.  Despite treatment, the groin/testicular pain could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded idiopathic right testicular pain for PEB adjudication.  On 1 November 2006, 7 months before separation, the CI received a right orchiectomy with testicular implant.  The PEB was terminated.  Post-surgery, the PEB was reinitiated with a MEB NARSUM exam performed on 6 February 2007, 4 months prior to separation.  The CI was diagnosed with idiopathic right testicular pain status post testicular removal with implant, which failed retention standards.  The CI reported constant pain aggravated by walking and he used a cane on occasion to keep weight off his right side.  

At the VA Compensation and Pension (C&P) examination on 26 March 2007, performed 2 months before separation, the CI was diagnosed with right testicular torsion status post-surgical repair.  His posture and gait were within normal limits and he did not utilize an assistance device.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 8799-8730 (analogous for neuralgia), citing severe incomplete paralysis.  The VA assigned a 0% rating using code 7524 (testis, removal) for loss of one testicle.  The Board noted there were no additional codes to consider that would render a rating greater than 10%.  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 right testicular pain condition.  

Low Back Pain.  According to service treatment records the CI’s was seen for low back pain after a fall while deployed to Iraq and was treated with NSAIDs.  He aggravated his low back condition when his vehicle was struck by an IED blast on 20 July 2005; however, his primary care focused on his right groin/testicle pain while in theater.  After being evacuated to the United States, he was treated for continued low back pain at the L5-S1 region with reduced flexion and extension range-of-motion (ROM).  Initial X-ray imaging was positive for degenerative disk disease and possible bilateral L1 fracture.  A follow-up magnetic resonance imaging noted disc bulging at L4-5 and L5-S1 without nerve compression.  His low back pain continued but showed improvement with epidural steroid injections and physical therapy.  Physical therapy ROM testing, 9 months prior to separation, recorded full painful lumbosacral ROM.  Despite treatment, the low back pain could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded chronic low back pain for PEB adjudication.  At the physical therapy exam for the MEB, 6 February 2007, 3 months prior to separation, he had no significant spinal tenderness and his gait was normal.  His thoracolumbar flexion was 40 degrees (normal 90) after 3 repetitions with a combined ROM of 135 degrees.  At the VA C&P exam, 2 months prior to separation, he experienced painful ROM with flexion 75 degrees and a combined ROM of 150 degrees; all other back symptoms were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under analogous code 5299-5242 (degenerative arthritis of the spine), with likely application of Army Regulation 635-40.  The VA assigned a 10% rating also using code 5242 based on the VA C&P examination 2 months after separation, citing limitation of forward flexion.  The Board noted the last physical therapy (PT) exam supported a 20% rating while the VA C&P exam supported a 10% rating; both based on limitation of motion.  The Board determined the 20% PT exam was an outlier.  A 10% rating is justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as corroborated and reported by the eight PT exams prior to the 20% PT exam as well as the VA C&P exam, most proximate to separation.  Additionally, there was no muscle spasm or guarding to cause 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 with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  The Board considered the totality of the evidence and concluded that a 10% rating was supported.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the low back condition, coded 5242.
Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the anxiety disorder NOS [not otherwise specified], headaches, tinnitus, obstructive sleep apnea (OSA) 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.  The Board noted that the CI underwent mental health examination for the MEB 4 month before separation and had a normal mental status examination.  His symptoms were stable, and he had improved with treatment.  The Board was unable to find sufficient evidence that any mental health condition, regardless of diagnosis, had significantly interfered with satisfactory duty performance.  The Board next considered the headaches, tinnitus and OSA conditions.  The headaches, tinnitus, and OSA conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  Although a mental health condition was among a condition listed in the commander’s statement, symptoms of a psychological condition was not implicated as interfering with duty performance, and no mental health condition was profiled of 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.  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:  In the matter of the right testicular pain, the Board unanimously recommends no change in the PEB adjudication.   In the matter of the chronic low back pain, the Board unanimously recommends a disability rating of 10%, coded 8799-8730 IAW VASRD §4.71a.  In the matter of the contended anxiety disorder, headaches, tinnitus, and obstructive sleep apnea 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 the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Right Testicular Pain	8799-8730	10%	
Chronic Low Back Pain	5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140805, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160011584 (PD201403648)

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