RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03769
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090405

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Field Artillery Automated Tactical Data Systems, medically separated for “degenerative arthritis of the spine,” with a disability rating of 10%.

CI CONTENTION:  The CI contends his back condition continues to worsen and impact his daily activities, several conditions were caused by exposure to depleted uranium munitions, and he should have been rated higher upon separation.  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 – 20081218	VARD – 20090326	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Spine	5242	10%	Degenerative Joint Disease, Lumbar Spine at L3-4	5010-5242	40%	20090224	
Sensorineural Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	NSC		
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Spine.  According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s lower back pain condition began in 2003 when deployed.  Upon return home and use of a new mattress, pain resolved.  However, after participating in combatant training in May 2004 pain recurred and it became progressively worse and was not responsive to nonsteroidal anti-inflammatory drugs (piroxicam and celecoxib), a muscle relaxer (methocarbamol), chiropractic treatment and modalities, physical therapy, and steroid injections.  X-rays on 15 March 2005 showed mild mid and lower levoscoliosis (curvature of the spine to the left) and minimal diffuse spondylosis (degenerative changes) of the thoracic spine with degenerative disc narrowing at L3-4 and minimal changes L4-5 136.  Magnetic resonance imaging (MRI) on 7 October 2005 showed a stable small annular disk bulge at L3-4 but no spinal canal or foraminal (space through which the spinal nerve root passes) stenosis; X-rays on 7 July 2008 showed degenerative disc disease at L3-4; and an MRI on 28 July 2008 demonstrated spondyloarthropathy (joint disease of the spine) at L3-4 with mild narrowing of the neuroforamina bilaterally.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “low back pain with sciatica,” for PEB adjudication.  

During the MEB examination dated 20 November 2008, 3 months prior to separation, the CI reported low back pain with sciatica bilaterally.  The CI’s pain was aggravated by standing for long periods, not sleeping in a fetal position, running, and walking for long distances.  He could ride a bicycle for 15-20 miles or drive for long periods on his good days.  The pain prevented him from lifting the required loads of his military specialty or perform physical training or other physical activities required of military service.  Physical examination showed normal strength and reflexes.  Straight leg raise (SLR) testing (to determine nerve root pain) was negative for radiating symptoms.  The examiner was silent regarding spasm, gait and spinal contour.  Thoracolumbar range of motion (ROM) flexion was 85 degrees (normal 90) and combined ROM of 225 degrees, after repetition and was limited by pain.  
    
At the 24 February 2009 VA Compensation and Pension (C&P) evaluation, performed 1 month before separation, the CI reported almost constant low back pain with tingling down both thighs, feet and toes.  The pain was relieved by tramadol (an opioid-like medication) and lying in a fetal position.  The pain was aggravated by bending over, lifting, walking, quick movements, and initially getting out of bed.  Physical examination revealed an abnormal gait with no spasm.  There was tenderness of the lumbar spine and sacroiliac areas and strength, reflexes and sensation were normal.  Straight leg raise testing was positive and there was lumbar flattening.  Thoracolumbar ROM flexion was 25 degrees, combined 120 degrees, and was limited by pain, but could not be measured after repetition due to pain.  At a VA C&P examination, performed 11 months after separation, physical examination revealed an antalgic gait.  Thoracolumbar ROM flexion was 70 degrees, combined 150 degrees, limited by pain.  No incapacitating episodes was indicated.  

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 painful motion.  The VA rated the degenerative arthritis of the spine condition 40% coded 5010-5242 (degenerative arthritis of the spine), based on the VA C&P examination 1 month before separation, citing limitation of forward flexion.  Although there was insufficient limitation of motion to support a minimum rating, the Board agreed a 10% rating was justified for the presence of painful motion.  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.  The ROM values reported by the VA examiner, 1 month prior to separation, were significantly worse than those reported by the MEB examiner, 3 months prior to separation. However, there was no record of recurrent injury, accident or other intervening event(s) to explain or account for the more marked impairment reflected by the VA measurements.  While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements, which actually improved 11 after separation and were more consistent with the measurements recorded in several STR examinations.  Furthermore, members agreed that the MEB examination was more consistent with the STR and more reflective of the anticipated severity based on the clinical pathology.  Therefore, the Board placed more probative value on the MEB examination measurements, and concluded that a 10% rating was justified.  
The Board also considered whether an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported intermittent tingling down his thighs to both feet.  However, while radiographic studies supported some level of radicular nerve irritation or involvement, physical examinations (physical medicine, PT, MEB NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no evidence that a significant motor weakness and/or sensory deficit existed to any degree that could be described as functionally impairing.  Thus, the Board concluded that an additional disability rating was not justified on this basis.  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 degenerative arthritis of the spine condition.

Contended PEB Condition:  Sensorineural Hearing Loss.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the degenerative arthritis of the spine condition and IAW VASRD §4.71a, the Board unanimously or majority recommends no change in the PEB adjudication.  In the matter of the contended sensorineural hearing loss conditions, the Board unanimously or majority 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 20140702, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX AR20160013800   (PD201403769)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA