RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00572
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060721

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Aviation Operations Specialist, medically separated for “low back pain” and “right foot pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI contends for 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 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 - 20060222	VARD – 20090922	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5240	10%	Ruptured Lumbar L4-L5 Post-Operative	5235	0%	20090515	
Right Foot Pain	5099-5003	10%	Residuals, Fracture, Right Foot	5284	0%	20090515	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in December 2001 while wearing a full fighting load, he bent forward and felt a sudden sharp stabbing pain down both legs that caused him to fall to the ground.  Pursuant to tingling and subjective weakness in both legs, a radiologic work-up revealed degenerative changes of the lumbosacral spine as well as effacement of local spinal nerve roots.  After long-term treatment consisting of medications and physical restrictions, the CI underwent surgical removal of a lumbosacral disc with nerve root decompression in July 2004.  Follow-up examinations revealed resolution of radicular symptoms, but his back pain continued.  Despite physical therapy (PT), manipulation, acupuncture, and pain management, he did not achieve symptom improvement sufficient to allow unrestricted duty.  The MEB forwarded “degenerative disc disease, lumbar,” for PEB adjudication.  

At the MEB NARSUM examination on 17 January 2006, 6 months prior to separation, the CI’s chief complaint was “low back pain”.  His physical examination (PE) revealed tenderness about the lumbar spine.  There was painful and decreased range of motion (ROM) of the thoracolumbar spine with 60 degrees of forward extension (normal 90) and extension of 15 degrees (normal = 30) for a total combined ROM of 225 degrees (normal 240).  All neurologic parameters were normal.  An emergency room (ER) visit on 9 May 2006, 2 months prior to separation, noted that the CI complained of low back pain that began that same morning after playing a game of “soccer.”  The documentation noted that the CI was seeking “pain control” for his acute symptoms.  There was no PE documented with that ER visit.  The VA Compensation and Pension (C&P) evaluation was performed nearly 3 years remote from separation and thus outside the time parameters for this review.  Therefore, any impairment rating recommended by this Board was based upon the STR and MEB documentation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition at 10% analogously coded as 5299-5240 (ankylosing spondylitis), citing marked lumbosacral tenderness.  The VA rated the back condition 0% coded 5235 (vertebral fracture or dislocation), based on the remote VA C&P examination, citing normal ROM without objective evidence of pain during the examination.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the MEB PT examination and therefore, recommends a disability rating of 20% for the low back condition, coded 5242.

Right Foot Pain.  According to the STR and the MEB NARSUM, the CI’s right foot condition occurred in 1997 during unit physical training after two Soldiers fell on his foot.  There was a paucity of clinical documents concerning the right foot condition and therefore the majority of historical information on the condition was obtained from the MEB NARSUM and more current status from a podiatry evaluation that was performed on 27 February 2006 (5 months prior to separation).  The original injury resulted in nearly a complete disruption of the ligaments in the mid portion of the right foot.  The record indicated that over many years, the CI underwent 3 corrective surgeries for the condition.  X-rays performed in late 2004 revealed degenerative changes in the right foot.  Post-surgical and long-term treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic right foot pain status post Lis Frank’s injury (mid-hind foot dislocation)” for PEB adjudication.  At the MEB NARSUM examination, the CI endorsed a constant throbbing and aching 2-3/10 pain on the outer aspect of the right foot made worse with prolonged walking, standing, or carrying extra weight.  He denied that the condition had any adverse effects on activities of daily living.  Although there was no actual PE of the right foot documented on the NARSUM, a Podiatry appointment 1 month later revealed tenderness and swelling about the metatarsal bones.  Additionally, under the heading of Neurologic/Sensation, “sensory examination abnormalities were noted”; however, there was no further identification of body location or the intensity of any such sensory deficit.
 
The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the right foot condition 10%, analogously coded 5099-5003 (degenerative arthritis), citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The VA rated the right foot condition at 0% coded 5284 (foot injuries, other), based on the remote C&P examination, citing the absence of moderate symptoms associated with foot injury.  Board members first agreed that either VA codes (5003 or 5284) as utilized by the PEB and VA, respectively, could be applicable in this case.  The radiographic degenerative changes support the 5003 code at 10% and the historical injury with surgical intervention not resulting in complete resolution of symptoms would support the 5284 code.  The remaining question for the Board is to what degree of impairment is there under 5284; does the impairment support a 20% at “moderately severe”?  After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board concluded that the right foot condition not having any adverse effects on the CI’s activities of daily living would not likely support a “moderately severe” level of impairment, but rather that of “moderate” impairment at 10%; the same if rated under 5003.  Therefore, there was insufficient cause to recommend a change in the PEB’s adjudication for the right foot condition.   

BOARD FINDINGS:  In the matter of the low back condition, the Board majority recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  In the matter of the right foot condition, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  

The Board majority 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	
Low Back Condition	5299-5240	20%	
Right Foot Condition	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, 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, AR20170000681 (PD201500572)

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, 
I reject the Board’s recommendation and hereby deny the individual’s application.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.  

2.  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:

CF: 
(  ) DoD PDBR
(  ) DVA