RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03710
BRANCH OF SERVICE:  Army	BOARD DATE:  20150722
SEPARATION DATE:  20070911

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Light Wheeled Mechanic) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but was authorized to perform an alternate physical fitness test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “degenerative disc disease,” “muscle spasms,” and “lumbago,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (see rating chart below) as meeting retention standards.  The Informal PEB combined the three MEB back conditions and adjudicated “chronic back pain” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting. 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 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 20070808	VA* - (Same Mos. As Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5237	10%	Degenerative Disk Disease w/…	5243	10%	20070913	
Plantar Fasciitis	Not Unfitting	Bilateral Post Stress Reaction w/Plantar Fasciitis	5299-5276	0%	20070913	
Foreign Body in the Eye	Not Unfitting	No VA Entry	
Other x 0 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20071109 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:  The Board notes that the PEB adjudicated an unfitting “chronic back pain” condition, which the DD Form 199 noted subsumed three MEB forwarded conditions – “degenerative disc disease” (DDD), “muscle spasms,” and “lumbago.”  The MEB examiner noted the lumbago (back pain) and muscle spasms were symptoms of the DDD.  The Board unanimously agrees that the evidence supports that the noted conditions are all manifestations of a single condition – DDD - and their fitness implications cannot be separated.  Therefore, they cannot be unbundled and are not eligible for individual disability, and thus are discussed together below for the Board’s deliberation and rating recommendation.

Chronic Back Pain Condition.  The narrative summary notes the CI developed back pain that slowly worsened and did not resolve with conservative management.  Notes in the service treatment record indicated that at a physical therapy (PT) visit on 23 October 2006 the CI reported chronic intermittent LBP, aggravated a month earlier by being in the field and wearing full gear.  The CI was improving with PT but at a clinic visit in March 2007 the CI reported that after being in the field, his upper and lower back pain was worse and the exam noted thoracic and lumbar muscle spasms.  Magnetic resonance imaging on 20 May 2007 showed DDD of the thoracic and lumbar spine, without evidence of disc herniation or spinal canal stenosis.  Orthopedic evaluation on 22 June 2007 noted that the CI’s pain was relieved by restriction of activities, but was constant when performing regular duties and not resolved by conservative treatments.  No surgery was indicated and the orthopedic surgeon recommended an MEB.  At the MEB exam on 29 June 2007, 2 months prior to separation, the CI reported chronic dull back pain, aggravated by activity.  The CI’s medications included medications for pain, inflammation, and muscle spasms.  The MEB physical exam noted “limited t-spine [thoracic] ROM due to pain” with tenderness to palpation (TTP) of the T-spine, with normal strength and sensation of the upper and lower extremities.  The MEB examiner indicated the CI had back pain and muscle spasms due to the DDD.  PT measured range-of-motion (ROM) on 27 July 2007 noted thoracolumbar (TL) flexion of 35, 34, and 35 degrees (normal 90) and combined TL ROM of 120 degrees (normal 240).  At the VA Compensation and Pension (C&P) exam on 13 September 2007, less than a month after separation, the CI reported that he had been offered surgery for the T-spine condition and declined because it was a complicated surgery, but noted conservative treatments provided very little benefit.  The exam noted the CI had a normal gait.  There was muscle spasm noted with a mild scoliosis due to spasm and TL ROM was flexion of 75 degrees and combined TL ROM of 225 degrees, with painful motion noted.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain condition 10%, coded 5237 (lumbosacral strain).  The VA rated the back condition 10% also, coded 5243 (intervertebral disc syndrome).  The Board reviewed the evidence and noted that the ROM at the MEB exam supports a 20% rating according to the VASRD rules for rating the spine in effect at the time of separation based upon ROM.  The Board also noted that the VA exam supports a 10% rating based on ROM alone.  However, the Board deliberated whether the 20% rating was applicable based upon the observation by the VA examiner that the CI had “mild scoliosis secondary to spasm.”  Members deliberated whether the evidence supports that the mild thoracic scoliosis noted was likely due to spasm or rather was a mild fixed spinal deformity.  The Board noted that there was no mention of scoliosis on the CI’s military enlistment physical and the “scoliosis” was intermittently noted on exams in the records.  Therefore, the evidence provides support for the contention that intermittent muscle spasm, rather than a fixed bony deformity, was responsible.  Hence, the Board concluded the 20% rating criterion of “muscle spasm or guarding severe enough to result in … an abnormal spinal contour” was satisfied at the prior to separation C&P exam.  Therefore, the Board agreed that evidence in record supports a 20% rating and there was no evidence of TL flexion of less than 30 degrees or ankyloses in record for a higher evaluation.  Also, there were no documented incapacitating episodes (IE) in record to provide a higher rating based on IE, or evidence of peripheral nerve impairment due to the back condition to recommend additional rating.  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 the back condition, coded 5243.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the plantar fasciitis and foreign body in the eye conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Plantar Fasciitis Condition.  The DD Form 2808, Report of Medical Examination, noted a diagnosis of plantar fasciitis (PF) that met retention standards.  There were limited notes in the STR regarding any foot symptoms.  A bone scan on 27 February 2007 performed for bilateral anterior tibial pain, noted “mild uptake in the first metatarsal joints of both feet” interpreted by the radiologist as “stress reactions of both feet.”  At a follow-up visit for bilateral leg pain the CI reported left foot pain at the end of the day or after running, present since a foot sprain a couple of years earlier.  On exam the left foot appeared normal, but there was TTP of the inside of the arch of the foot and the examiner diagnosed PF.  The CI was placed on a 2 week profile.  Left foot X-ray on 29 August 2007 was normal.

Foreign Body in Eye Condition.  On 21 June 2007 The CI reported something fell into his left eye the night before and the eye symptoms had improved, but there was still some discomfort.  The eye was irritated on exam, but no FB was noted.  At an eye exam for the MEB a week later, no problems with the left eye were reported or noted and the CI’s corrected vision was normal in both eyes.

The PF condition was not profiled.  The “foreign body in eye” condition was listed on the permanent profile, but the profile was noted to be E1.  The PF and left eye conditions were not implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that either 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 either of the contended conditions and so no additional disability ratings are 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 back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended PF and eye 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.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Back Pain Condition	5243	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140618, 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 XXXXXXXXXXXXXXXXXX, AR20160002831 (PD201403710)

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