RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00786
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040407

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Practical Nurse, medically separated for “chronic low back pain…” and “bilateral flank pain, intermittent hematuria attributed to cystic disease of kidneys…” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “I was diagnosed with polycystic kidney disease, hematuria, …. frequent kidney infections…”  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 - 20031209	VARD - 20040504	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain …	5243-5299-5237	10%	DDD, L-Spine	5243	40%	20040305	
			Sciatica…Left Leg	8520	10%		
Bilateral Flank Pain … Cystic Disease of Kidneys	7533-5099-5003	0%	Bilateral Polycystic Kidney Disease	7599-7533	0%		
Tension Headaches	Not Unfitting	No VA Placement	
Adjustment Disorder		Depression with Anxiety	9434	10%	20040305	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in March 2003 without any specific injury.  She complained of radiating pain and numbness down the left leg.  Diagnostic imaging (MRI) showed degenerative disc disease (DDD) and herniated discs (HNP) at L3-L4 and L4-L5.  Narcotic pain medication and Neurontin did not sufficiently resolve the CI’s symptoms to allow full duty.  The CI reasonably declined surgery.  
The 28 July 2003 MEB NARSUM addendum examination, 8 months prior to separation, noted complaints of back pain radiating with pain and numbness into the left leg.  The physical examination showed a normal gait with toe and heel walking “done well.”  Straight leg raise testing for radicular symptoms was negative.  Motor and reflex testing were normal. Sensory testing indicated a “subtle diminution of pinprick sensation over the top of the left foot,” and was considered “essentially normal.”  There was tenderness over the lumbar area.  Range of motion (ROM) testing was deferred to physical therapy but was actually accomplished by an orthopedic physician 17 October 2003 (6 months prior to separation).  These measurements are depicted in the ROM chart below.

During the 5 August 2003 MEB NARSUM examination, 8 months prior to separation, the CI reported back pain radiating into the left leg.  The physical examination showed that the CI was in distress due to pain at times.  There was tenderness in the lower back.  There was no decrease in strength or sensation in the lower extremities.  The nephrology service agreed that her LBP [“syndrome”] was consistent with polycystic kidney disease and that her ongoing cyst hemorrhage was likely contributing to her pain syndrome.  A neurosurgery consult noted there was no indication for surgery.  The physician indicated that the CI was only able to work 4 hours a day and was “unable to perform strenuous activity due to her pain syndrome.”  The 28 July 2003 MEB addendum indicated continued back pain with radiating pain and numbness down the left leg.  Examinations showed a normal gait with back tenderness.  Strength was normal and there was “subtle diminution of pinprick sensation over the top of the left foot.”  ROMs were accomplished on 17 October 2003 and are charted below.  

At the 4 March 2003 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI complained of excruciating back pain and left leg sciatica.  She indicated she was recently seen at the emergency department for severe spasm and pain and was taking Celebrex, Flexeril, Methadone, and Percocet (narcotic pain medications), for severe pain.  X-rays showed lumbar DDD.  The physical examination showed a very antalgic gait to the left side.  There was “sciatica noted on her left leg with leg raising.”  ROM was with pain and stiffness and is charted below.  The source exam stated, “Lumbar spine:  She has a flexion of 20 degrees with obvious pain and stiffness starting at 10 degrees and ending at 25 degrees.”  The evaluation was performed by a VA advanced practice nurse and co-signed by a physician.  

The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	Ortho Addendum ~ 6 Mos. Pre-Sep	VA  C&P ~1 Mo. Pre-Sep	
Flexion (90 Normal)	60 (56, 58, 59)	25	
Combined (240)	190	105	
Comments:  Applied VASRD spine notes (2) and (4) 	Loss of motion “pain or mechanical;” no spasm	Painful motion; antalgic gait	
§4.71a Rating	20% (PEB 10%)	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5243-5299-5237 (intervertebral disc syndrome - lumbar spine strain), citing no radiculopathy or chronic spasm and combined ROM of 195 degrees.  The VA rated the low back condition 40% coded 5243 (intervertebral disc syndrome), based on the C&P examination one month before separation, citing flexion of 20 degrees.  The VA also rated the left leg sciatica condition 10%, coded 8520 (sciatic nerve) citing mild neuropathy of the left leg.  

The Board deliberated the probative value of the exams in evidence.  The MEB NARSUM examination (without ROMs) and the addendum with ROMs were accomplished by physicians and were 8 and 6 months prior to separation.  The VA examination was accomplished one month prior to separation and indicated the CI had emergency treatment for back pain and spasm, increased pain, and required addition of a long-acting narcotic pain medication since the NARSUM examinations.  

The Board noted that the limitations of motion recorded during the two examinations were significantly different. The MEB measurements were consistent with other proximate (pre-separation) examinations, were more thorough (with three repetitions), and supported a 20% rating based on limitation of thoracolumbar ROM.  The pre-separation VA C&P examination was closer to separation, listed only one repetition, and the examiner cited 20 degrees of forward flexion, with “pain and stiffness starting at 10 degrees and ending at 25 degrees.”  The Board majority agreed that the forward flexion for rating purposes should be where the ROM ends, in this case at 25 degrees.   Although there is no rating difference between a 20 and 25 degree forward flexion, (both support a 40% rating), the Board majority agreed that the VA examination was less probative for DoD rating purposes.  

The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula. The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength and reflexes in all examinations, and the sensory changes noted at the July 2003 MEB addendum did not affect her job.  The abnormal gait noted at the VA pre-separation exam was not attributed to peripheral nerve impairment.  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 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).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore 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 consensus was to recommend a disability rating of 20% for the chronic LBP condition, coded 5243-5237.  

Bilateral Flank Pain, Intermittent Hematuria, Attributed to Cystic Disease of Kidneys.  According to STRs and the MEB NARSUM, the CI’s bilateral flank pain condition began in 2002.  Evaluation showed bilateral renal cysts and microscopic hematuria, and she was evacuated to CONUS in February 2003 with an inpatient evaluation.  The condition was associated with abdominal pain and headaches that interfered with duty performance.  The MEB forwarded “polycystic kidney disease with cyst hemorrhage and pain” for PEB adjudication.  

During the June 2003 MEB examination (recorded on DD Forms 2807 and 2808) 10 months prior to separation, the CI reported flank and back pain with hematuria and a diagnosis of bilateral polycystic kidney disease.  The physical examination showed urinalysis positive for a urinary tract infection and elevated blood pressures of 137/98 and 148/91, with other elements referred to specialist consultant evaluations.  

The 5 August 2003 MEB NARSUM examination, 8 months prior to separation, noted complaints of hematuria and both abdominal and back pains (with nausea) associated with polycystic kidneys.  The CI had a history of pyelonephritis (kidney infection).  Diagnostic imaging showed bilateral polycystic kidneys with no hydronephrosis or nephrolithiasis.  The physical examination showed the CI was in occasional distress due to pain and had intermittent tenderness of the abdomen and lower back.  Urinalysis was positive for 2+ blood with no protein.  Blood pressure was 138/89 (normal).  

At the 4 March 2003 VA C&P evaluation, one month before separation, the CI reported significant flank pain attributed to polycystic kidney disease encapsulating the nerve (based on abdominal imaging studies).  The abdominal physical examination was benign.  Urinalysis showed hematuria of +10.  Blood pressures were elevated with measurements of 150/98 (sitting), 152/90 (standing), and 148/100 (lying flat).  Prior diagnostic imaging was summarized and the diagnosis was “Bilateral polycystic kidney disease with recurrent hemorrhagic cysts, active, found.”  

The Board directed attention to its rating recommendation based on the above evidence.  The Formal PEB rated the bilateral flank pain … cystic disease of kidneys condition 0%, coded 7533-5099-5003 (cystic diseases of the kidneys – degenerative arthritis), citing no significant renal impairment and “rated for pain” (likely application of the US Army Physical Disability Agency pain policy).  The VA rated the for bilateral polycystic kidney disease with hemorrhagic cysts condition 0%, coded 7599-7533 (cystic diseases of the kidneys), based on the C&P examination one month before separation, citing no significant renal function impairment or any established diagnosis of hypertension.  

There were red blood cells in the urine, but no evidence of urinary albumin or casts, and renal function was normal.  The CI had some elevated blood pressure reading, which if diagnosed as hypertension, would be non-compensable under diagnostic code 7101.  There was thus no path to any rating higher than the 0% awarded by the PEB.  

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 bilateral flank pain, intermittent hematuria attributed to cystic disease kidneys condition.  

Contended PEB Conditions:  Tension Headaches and Adjustment Disorder.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Adjustment disorder is a condition not constituting a physical disability, IAW DoDI 1332.38, therefore, the Board has no basis for recommending it as unfitting.  The contended headache condition was not profiled, implicated in the commander’s statement, or judged to fail retention standards.  There was no performance-based evidence from the record that the headache 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 either of the contended conditions and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the LBP condition and IAW VASRD §4.71a, the Board majority recommends a disability rating of 20%, coded 5243-5237 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the bilateral flank pain … cystic disease of kidneys condition and IAW VASRD §4.115b, the Board unanimously recommends no change in the PEB rating, but a change in coding to 7599-7533 IAW VASRD §4.115b.  In the matter of the contended tension headache and adjustment disorder 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	
Chronic LBP	5243-5237	20%	
Bilateral Flank Pain, Intermittent Hematuria Attributed to Cystic Disease of Kidneys	7599-7533	0%	
COMBINED	20%	

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

AR20170004782, XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,		

MINORITY OPINION:  

The CI’s chronic LBP should be rated at 40%.  The minority member agrees the evidence supports no change in the rating for cystic disease of the kidneys and no addition of any contended condition as additionally rated.  

The minority member, however, strongly recommends that for purposes of rating the CI’s chronic LBP, the VA exam one month pre-separation carried the highest probative value for rating.  There was significant evidence proximate to separation which would add weight favoring the VA’s examination and 40% rating versus using the more remote MEB examinations which supported a 20% rating.  The remote service examinations and PEB rating were prior to pre-separation worsening.  

Rating recommendations are based on ratable criteria at the time of separation; therefore, higher probative value should be placed on evidence most proximate to that time.  There was clear and obvious pre-separation worsening of the CI’s chronic LBP condition in the 5 months following the MEB ROM evaluation.  The pre-separation VA examination history indicated emergency department treatment for back spasm and addition of a long-acting narcotic pain medication.  The Board’s discussion of potential secondary gain impacting the VA examination was not supported by any facts in evidence of non-physiologic findings or symptom exaggeration.  Absent undue speculation, there was no mechanism to decrease the value of the VA pain-limited ROMs based on any speculated contribution of pain due to the CI’s polycystic kidney disease.  

The pre-separation VA examination’s thoracolumbar forward flexion of 25 degrees was bolstered by a “very antalgic” gait and clearly supported a 40% rating for “forward flexion of the thoracolumbar spine 30 degrees or less.”  

In the matter of the chronic LBP condition, the minority voter recommends a disability rating of 40%, coded 5243-5237.  

The minority member recommends that the CI’s prior determination be modified and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement at 40%, effective as of the date of the prior medical separation.  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic LBP	5243-5237	40%	
Bilateral Flank Pain, Intermittent Hematuria Attributed to Cystic Disease of Kidneys	7599-7533	0%	
COMBINED	40%