RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03667
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050506

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Crane Operator, medically separated for “low back pain” and “cervical pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  “Diabetes mellitus type II with peripheral neuropathy” was found unfitting but determined to exist prior to service (EPTS) and not permanently service aggravated.

CI CONTENTION:  “Please consider 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 based upon a 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 - 20050309	VARD - 20060610	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	10%	Thoracic Spondolysis	5239	20%	20060311	
Neck Pain	5242	10%	Cervical Strain	5237	20%	20060311	
Diabetes Mellitus, Type II with Peripheral Neuropathy	7913	EPTS/ NO PSA	Diabetes Mellitus	7913	40%	20060311	
			Peripheral Neuropathy, RLE	8521	10%	20060311	
			Peripheral Neuropathy, LLE	8521	10%	20060311	
Urinary Incontinence	Not Unfitting	Neurogenic Bladder	7542	40%	20060311	
Adjustment Disorder	Not Unfitting	Major Depressive Disorder	9434	50%	20060328	
Sacrum Stress Fracture, Healed	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Low Back Pain Secondary to Lumbar Spondylosis.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain began with a fall on ice in February 2003 (5 months after service entry).  She was subsequently diagnosed with a possible non-displaced fracture of the sacrum by bone scan, which also suggested multiple bilateral lower extremity stress reactions.  The latter were presumably due to the rigors of early training; and, although not within the Board’s scope and not subject to rating, were probative to later functional complaints interspersed with the spine conditions.  There was persistent pain and intermittent neurological complaints, and magnetic resonance imaging (MRI) demonstrated “mild” degenerative disc disease (bulge at L4/5 without herniation or neural encroachment, and a stable finding on serial studies).  Initial STR entries reflected a normal gait, normal to modestly impaired range of motion (ROM), and normal neurological findings.  In March of 2004 the CI was diagnosed with diabetes (details below), and a month later MEB proceedings were initiated.  Subsequent STR entries documented a complaint of worsening and severe back pain, resulting in the need for a wheel chair per some entries and a persistent antalgic gait per others.  The CI was referred to physical therapy (PT), but no treatment notes are in evidence.  New neurological complaints also developed that included pain radiating to all extremities, subjective weakness, sensory symptoms, and tremors (“uncontrolled shaking,” “pseudoseizures”) of all extremities.  Neurological findings were variable during the MEB period, with inconsistent entries for reduced motor strength (often noting ‘give way’ weakness and/or reservations regarding effort) and disparate annotations of non-dermatomal sensory impairment as reported with testing.  Some examiners recorded occult observations of functional ability better than that displayed at examination, and there were numerous STR comments regarding atypical and suspect findings.  A neurologist in July 2004 noted “multiple functional findings ... [and] ... no explanation for her ongoing difficulties.”  Subsequent electrophysiologic testing (EMG/NCS) of the lower extremities in September 2004, however, was reported to demonstrate “neuropathy” (by clinical notes, source report and details not in evidence).  A second-opinion neurology consultant noted “poor compliance” with testing and 4-4+/5 “giveaway” weakness in some groups; and, opined that there was “no evidence of a lumbar radiculopathy ... [or] ... myelopathy,” recommending against surgery.  Formal ROM measurements for the MEB conducted by PT in September 2004 (7 months before separation) were flexion to 30 degrees (normal 90) and combined ROM of 95 degrees (normal 240); and, the examiner stated, “[Such] extreme limitation of movement is not likely due to structural limitation, but influenced by pain perception and possible non-organic factors.”  Repeat measurements by PT a day before separation were flexion to 25 degrees and combined ROM of 150 degrees.  There was no STR documentation of abnormal spinal contour or incapacitating episodes.  

The MEB NARSUM examination on 6 January 2005 (4 months prior to separation) noted complaints of “severe” back pain rated 7/10 with “some numbness of the lower extremities especially in the right leg.”  The physical examination recorded a normal non-antalgic gait despite presenting in a wheelchair, normal spinal contour, diffuse tenderness, and normal strength; but, the CI reported decreased sensation “from C4 to S3 distribution on the right [right half of the body below the neck].”  The NARSUM referenced above PT ROM measurements from 8 September 2004.  

At the VA Compensation and Pension (C&P) examination in March 2006 (10 months after separation), the CI reported constant back pain rated 8/10, stiffness, weakness and spasms.  She stated that she was able to do all activities except push a lawn mower and gardening.  The physical examination recorded “diffuse pain on palpation.  Posture and gait were normal (no wheel chair or assistive device), but “hesitant.”  Straight leg raise was negative and reflexes were normal.  In contrast with the NARSUM, the CI complained of decreased sensation of the bilateral lower extremities (right more than left); and, she asserted that she was unable to dorsiflex the right ankle against resistance, but was able to walk on her toes and heels.  Thoracolumbar ROM was recorded as flexion to 50 degrees and combined ROM of 165 degrees, all limited by pain with no degradation on repetition (negative DeLuca factors).  

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under code 5299-5237 (analogous to lumbar strain), citing tenderness and reduction in ROM “due to pain alone,” which suggested application of Army Regulation (AR) 635-40 (B-29, e).  The Board, as above, must premise its recommendation on criteria of VASRD §4.71a.  The VA rated under code 5239 (spondylolisthesis), citing the C&P flexion to 50 degrees as a §4.71a criterion for its 20% determination.  Both of the Service PT formal ROM evaluations would support the VASRD §4.71a 40% criterion of “forward flexion of the thoracolumbar spine 30 degrees or less.”  After due consideration and deliberation, however, members agreed that there were multiple and compelling probative value detractors for most of the MEB evidence, to include the ROM measurements which would have been influenced by the same subjective factors (as specifically opined by the physical therapist).  Members thus concluded that the post-separation VA evidence, although itself subject to probative value doubts, was a more reasonable foundation for the Board’s recommendation.  As noted above, the post-separation C&P ROM evidence supported a §4.71a rating of 20%.  There was no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome that would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the lumbar spine condition; proposing code 5242 (degenerative arthritis of the spine) for its clinical compatibility.  

The Board also considered if additional 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 there was evidence indicating functionally significant motor and/or sensory deficits in this case, it was clouded by the probative value issues; and, not clinically consistent with peripheral neuropathy due to the relatively mild disc disease in evidence.  The VA provided ratings for the lower extremity neuropathies, but they were ascribed to “a diagnosis of diabetes mellitus with secondary neuropathy.”  The latter etiology was subject to challenge as well, although more plausible than spinal neuropathy.  Given the probative value issues and the weak clinical link to the unfitting spine condition, members agreed that there was insufficient justification for recommending additional rating for peripheral neuropathy associated with the unfitting lumbar spine condition.  

Neck Pain.  The CI attributed the cervical condition to the same fall (February 2003) as that responsible for the back injury, although the complaint was not documented in the STR until soon after the MEB referral for diabetes (no interim injury).  At that time she complained of worsening neck pain radiating down the right upper extremity (RUE).  An MRI in June 2004 showed disc disease (C5/6 protrusion “mildly deforming” cord without nerve root encroachment).  A subsequent neurology consultant noted 4-4+/5 “giveaway” weakness of some RUE groups; but, concluded that “she does not have a clear cervical radiculopathy” and opined that surgery was not indicated.  The variable neurological findings and many of the probative value factors elaborated for the lumbar condition were applicable to the cervical condition.  An EMG/NCV study (bilateral upper extremities) in January 2005 (4 months before separation) was interpreted as “borderline normal.”  There was STR documentation of grossly normal cervical ROM prior to the MEB period and no indication of significant ROM limitation.  The consulting neurologist from above (during MEB proceedings) recorded “no [ROM] ... of her neck secondary to pain.”  There was no other notation of severe cervical ROM limitation on concurrent STR entries, and a hospital admission note for treatment of a urinary tract infection two months after the neurology note stated, “Cervical spine motion is intact to rotation, side bending, flexion and extension.”  There were nevertheless two formal ROM measurements by PT during the MEB period (September and October 2004), and they recorded the same flexion to 20 degrees (normal 45) and equivalent combined ROM (some variance with different planes) of 125 degrees (normal 340).  The PT examiner’s opinion quoted in the lumbar evidence was also applicable to the September cervical ROM measurements.  There was no STR documentation of abnormal spinal contour or incapacitating episodes.  

The NARSUM included the neck pain in the description of overall pain severity as elaborated above (7/10), and noted “bilateral upper extremity numbness” with subjective weakness “mostly on the right.”  The physical examination recorded tenderness without note of spasm or abnormal contour and normal 5/5 upper extremity strength (including grip) in all groups except for “4/5 in the [right] triceps and deltoids.”  The examiner referenced the PT ROM from September 2004.

The 10-month post-separation VA C&P examination also included the neck pain in the description of overall pain severity as above (8/10), and did not document any upper extremity radiation or motor/sensory complaints.  By physical examination, however, the examiner stated, “On motor function of the upper extremities, she seemed to give way.”  There were no other positive upper extremity neurological findings, and “no radiation of pain on movement.”  The only other positive physical finding was “some” paracervical tenderness.  The ROM measurements were flexion 20 and combined 225 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5242 (degenerative arthritis of the spine) was also presumed to be grounded in AR 635-40.  The VA rated under code 5237 (cervical strain), citing the C&P flexion to 20 degrees as a §4.71a criterion for its 20% determination.  All of the STR and VA ROM evidence supported the 20% criterion of “forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees,” and the STR evidence additionally supported the 20% criterion of “combined range of motion of the cervical spine not greater than 170 degrees.”  Although the members had the same probative value concerns with the cervical spine ROM and other evidence, there was no contrary ROM evidence that was compliant with VASRD §4.46 (accurate measurement).  There was no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome that would provide for a higher rating under that formula.  The Board considered additional rating for the RUE radiculopathy, but for the same probative value reasons as those expressed with regard to the lumbar neuropathies, and for the lack of adequate evidence establishing a functional link to fitness, members agreed (in concordance with the VA decision) that rating for a radiculopathy associated with the unfitting cervical spine condition was not sufficiently justified.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board recommends a 20% rating for the cervical spine condition under code 5242.  

Diabetes Mellitus, Type II.  The CI’s diabetes mellitus type II (DM II) condition was diagnosed in March 2004 from an incidental finding on a urinalysis for a possible bladder infection.  The diagnosis was preceded by the administration of steroids (which induce high glucose) for the spine complaints.  A review of the available STR identified two steroid injections (one nerve root, one epidural, no oral courses), the last of which was two months prior to the diagnosis.  The CI related a history of “hypoglycemia as a teenager,” but the available records do not provide a detailed family history or a database for prior laboratory results or other clinical indications of insipid diabetes.  The CI was managed with dietary restrictions, an oral hypoglycemic medication (Avandamet), and insulin.  There was no evidence for hospitalizations, ketoacidosis, hypoglycemic reactions, or requirement for frequent provider visits.  Other than the equivocal lower extremity neuropathies as discussed in detail above, there was no evidence for any diabetic complications.  The STR indicated possible compliance issues, but overall moderate control (glucose 200-250 range with Hgb A1C correlation).  For unexplained reasons the glucose was critically high (555) at the time of the 10-month post-separation VA C&P examination.  The VA provider advised, “To prevent hypoglycemia, no extraneous activities such as jogging.”  There was no other evidence for activity restriction, although the CI’s overall functional status logically rendered such advice moot.  

The Board directed attention to its recommendation(s) based on the above evidence.  The Board’s initial charge was an assessment of the fairness of the PEB’s determination that the diabetes existed prior to service (EPTS) and was not permanently aggravated by service.  The Board’s recommendation in that regard was premised on (and the PEB’s decision subject to) DoDI 1332.38 which is excerpted below.
[E3.P4.5.2.3. Presumption of Aggravation] The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training.  Such medical evidence must be based upon well-established medical principles [E2.2.1. - Fundamental deductions consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct.], as distinguished from personal medical opinion alone. Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.
The PEB’s DA Form 199 decision for opining that the DM II was EPTS invoked U. S. Army Physical Disability Agency (USAPDA) policy that “places the onset of Type II diabetes as minimum of 2 years prior to the onset of first symptoms.”  The interval between enlistment and diagnosis was 18 months in this case.  There was no DoD directive to that effect, and the Board could not locate any formal USAPDA policy supporting the PEB’s position.  Even conceding EPTS, however, the PEB still did not address the possibility of permanent service aggravation by the preceding steroid administration.  With the limited doses of steroids in this case, it was more likely that they unmasked pre-existing disease; but, it could not be excluded with medical certainty that the steroids did not trigger the disease in a predisposed patient who may have not otherwise manifested it; or, at least not at the earlier age and to the severity that it occurred.  Members thus agreed that, in fairness and in compliance with  DoDI 1332.38, permanent service aggravation should be conceded; thus, the Board recommends the DM II condition for service rating. 

Having so determined, the Board turned to deliberation of the appropriate rating recommendation.  Diabetes mellitus is rated under the specific code 7913.  The VASRD §4.119 rating criteria for 7913 are: 10% - “manageable by restricted diet only;” 20% - “requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet;” and, 40% - “requiring insulin, restricted diet, and regulation of activities.”  The higher ratings require episodes of ketoacidosis, hypoglycemic reactions, and other criteria that were not in evidence.  It was clear that all of the criteria for a 20% rating were supported by the above evidence; and, the VA conceded the additional criterion of “regulation of activities” for its 40% determination, citing the VA examiner’s proscription of strenuous activities.  Members agreed, however, that this single uncorroborated provider opinion was insufficient to satisfy the requisite 40% criterion.  The CI manifested an acuity at the time of the VA examination which was not typical of that reflected by the overall evidence.  Notwithstanding the CI’s apparent inability to participate in strenuous activities regardless of diabetes (with the attendant disability already subsumed in other ratings), the overall clinical acuity of the DM II itself was judged to be compatible with healthy exercise (to include “jogging and other strenuous activity”) without a significant risk of a hypoglycemic response.  It was thus agreed that the 40% criterion of regulation of activities was not sufficiently justified by the evidence.  Since the members remained unconvinced of both the etiology and the degree of functional impairment associated with the neuropathies (as above), it was agreed that rating for diabetic neuropathies (as conferred by the VA) was not sufficiently justified.  

After due deliberation, considering all evidence and with deference to reasonable doubt, the Board recommends that permanent service aggravation of the DM II condition be conceded, and recommends a rating of 20% under code 7913.  

Contended PEB Conditions:  Urinary incontinence of unclear etiology, adjustment disorder with depressed mood, and suspected sacrum stress fractures (healed).  The Board’s main charge was to assess the fairness of the PEB’s determination none of these conditions were unfitting.  

The CI stated that she developed urinary incontinence shortly after the 2003 fall, but it first surfaced in the STR at the same time as the new extremity neurological symptoms (weakness, tremors, etc.).  She was referred to urology and underwent an extensive and normal ancillary evaluation (video urodynamics, cystoscopy, and voiding cystourethrogram).  A urology addendum to the NARSUM concluded that the etiology was “still unclear,” although speculated that it could be “myogenic secondary to narcotics use.”  

A psychiatric addendum to the NARSUM from June 2004 (10 months before separation) reported difficulty with earlier appointments due to apparent narcotic intoxication at the time of presentation.  The Axis I diagnosis was adjustment disorder (as above), and the examiner opined that the social and industrial impairment (as per DoDI 1332.39) was “none.”  There was no STR evidence of psychiatric treatment after the addendum, and no psychoactive medications were included in the NARSUM medication list (earlier outpatient notes had listed Paxil, an anti-depressant).  

As per the above lumbar spine evidence, there was bone scan evidence for a non-displaced sacral fracture resulting from the 2003 fall, but this was not identified on subsequent imaging (MRI, CT).  

None of the above conditions were profiled or implicated in the commander’s statement, and all were judged to meet retention standards.  There was no performance-based evidence from the record that any of them significantly interfered with satisfactory duty performance at separation.  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 urinary incontinence, adjustment disorder (not compensable regardless of fitness determination), or sacral fracture conditions; thus, none are eligible for disability rating.   

BOARD FINDINGS:  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the cervical spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the diabetes mellitus condition, the Board unanimously recommends that permanent service aggravation be conceded for a disability rating of 20%, coded 7913 IAW VASRD §4.119.  In the matter of the contended urinary incontinence, adjustment disorder, and sacrum stress fractures, 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Disc Disease, Lumbar Spine	5242	20%	
Degenerative Disc Disease, Cervical Spine	5242	20%	
Diabetes Mellitus, Type II	7913	20%	
COMBINED	50%	

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 XXXXXXXXXXXXXXXXXXXXX, AR20160017202 (PD201403667)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 50% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA