RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01784
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20050901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Signal Support Systems Specialist, medically separated for “chronic non-radiating thoraco-lumbar back pain” and “chronic bilateral ankle pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  “I have had significant issues as a result of problems that were aggravated during service including memory problems.  VA rating for PTSD 30%, back injury 10%.  Not yet rated for TBI diagnosis.  Review all conditions.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’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 panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’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 panel 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 panel 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 – 20050523	VARD - 20051011	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-radiating Thoraco-lumbar Back Pain	5299-5237	10%	Degenerative Joint Disease Thoracolumbar Spine	5242	10%	20050823	
Chronic Bilateral Ankle Pain	5099-5003	0%	Left Foot and Ankle Strain	5271	0%	20050823	
			Right Foot and Ankle Strain	5271	0%	20050823	
Hypertension	Not Unfitting	Hypertension	7101	0%	20050823	
Tinea Versicolor	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Back Condition.  According to the service treatment record (STR) and the medical evaluation panel (MEB) narrative summary (NARSUM), the back condition began approximately 4 years prior to referral for MEB.  The 28 December 2004 thoracic spine X-rays showed mild-to-moderate multilevel degenerative changes.  The 10 January 2005 physical therapy (PT) back active range of motion (ROM) was grossly within normal limits.  The 26 January 2005 thoracic and lumbar spine X-rays showed mild-to-moderate multilevel degenerative changes.  The 1 February 2005 PT examination revealed mid-back T7-T10 tenderness and tightness.  Active ROM was full with pain on extension and flexion.  The 7 February 2005 DD Form 2808 examination revealed mild discomfort at mid-thoracic spine and full active ROM.  

At the 9 March 2005 physical medicine evaluation, 6 months prior to separation, the CI complained of chronic lower lumbar back pain since 2001.  He denied a history of specific trauma, radiation of pain, or neurological complaints such as numbness, tingling, or weakness.  The back examination revealed T11 spinous process tenderness.  “The patient can actually demonstrate excellent back range of motion at this time able to flex forward, perform normal hyperextension, twisting, and side bending without any pain or discomfort.”  Provocative tests for sacroiliac (SI) joint pathology, and radiculopathy were negative.  Strength, sensation, and deep tendon reflexes (DTRs) were normal.  The assessment listed lower thoracic degenerative disc disease (DDD) and T11 spinous process bursitis or supraspinous ligament strain.  

At the 9 March 2005 MEB NARSUM, 6 months before separation, the CI complained of constant, dull, 4/10, mid-thoracic spine pain.  Symptoms were exacerbated by bending and lifting greater than 20 pounds.  No surgery was recommended.  The back examination revealed T7 through T10 vertebral tenderness.  Thoracolumbar spine active ROM was full.  Provocative tests for radiculopathy were negative.  Strength, sensation, and DTRs were normal.  

The 25 March 2005 physical medicine back examination revealed T9, T10, and T11 spinous process tenderness.  “The patient [with] pain primarily on forward flexion, and can display near normal back hyperextension with little or no pain.  The neurological evaluation is unremarkable.”  A 1 April 2005 thoracic spine magnetic resonance imaging (MRI) showed mild disc degenerative changes (T8-9, T9-10, T10-11).  The 7 June 2005 thoracic and lumbar spine X-rays showed mild-to-moderate multilevel degenerative changes.  The 23 August 2005 thoracic and lumbar spine X-rays showed mid-thoracic degenerative disc disease.  

In the 23 August 2005 VA Compensation and Pension (C&P) examination, 1 week before separation, the CI complained of sharp, throbbing, 7-8/10, thoracic and lumbar pain since 2003.  Symptoms were exacerbated by prolonged standing and walking.  He denied a history of trauma and bowel or bladder problems.  The CI reported “walking is fine” and did not use any assistive device or wear a back brace.  The back examination revealed tenderness from T8 down with paraspinous muscle spasms in the thoracolumbar area.  Pain-limited back ROM values were flexion of 45 degrees (90 normal), bilateral lateral flexion of 15 degrees (30 normal), and bilateral rotation of 25 degrees (30 normal).  The CI “could only do three back flexions and extensions and he had to stop because the pain became very severe….”  Provocative tests for radiculopathy were negative.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5237 code (lumbosacral strain) citing tenderness, full ROM, and no clinical signs of radiculopathy.  The VA assigned a 10% rating under the 5242 code (degenerative arthritis of the spine), based on the C&P examination 1 week before separation, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.  The ROM values in 6 of 7 proximate examinations (PT, PT, MEB 2808, physical medicine, NARSUM, physical medicine) did not attain the minimum 10% rating (flexion of greater than 60 degrees but not greater than 85 degrees; or a combined ROM of greater than 120 degrees but not greater than 235 degrees of the thoracolumbar spine).  The ROM values in the C&P examination were consistent with the 20% (flexion of greater than 30 degrees but not greater than 60 degrees; or a combined ROM of not greater than 120 degrees of the thoracolumbar spine).  The panel assigned more probative value to the majority of proximate examinations demonstrating normal ROM.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  There was no documentation of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  While the proximate examinations documented tenderness, there was no evidence of muscle spasm, abnormal spinal contour, or abnormal gait.  Other routes to a rating higher than the PEB’s 10% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45.  The panel agreed a 10% rating was supported based on VASRD §4.40 (functional loss) or §4.59 (painful motion).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.  

Bilateral Ankle Condition.  The PEB combined the right and left ankle conditions as a single unfitting condition coded analogously to 5003 (arthritis, degenerative) and rated 0%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The panel also noted that “bundling,” the combining of two or more major joints may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right and left ankle conditions are presented together, with attendant recommendations regarding separate unfitness and rating, if applicable, in the rating discussion.  

According to the STR and the MEB NARSUM, the right ankle condition began approximately 3 years prior to referral for MEB.  The 27 September 2004 bilateral ankle X-rays were normal.  The 19 January 2005 PT right ankle examination revealed mild tenderness over the anterior talofibular ligament (ATFL) with no swelling or deformity.  Right ankle active ROM was full and without pain.  The anterior drawer (assesses ATFL) and talar tilt (assesses calcaneofibular ligament [CFL]) tests were negative.  The assessment listed right ankle recurrent instability.  

The 23 February 2005 podiatry bilateral ankle examination, 6 months prior to separation, revealed no tenderness, edema (excess tissue fluid swelling), or erythema (redness).  Bilateral ankle ROM was normal and without pain or crepitus (grating sensation or sound).  The anterior drawer and talar tilt tests were negative.  The diagnosis listed chronic bilateral ankle pain and chronic subjective ankle instability.  

In the MEB NARSUM, the CI reported recurrent right ankle sprains since 2002, and instability since an injury in May 2004.  He complained of intermittent, aching, 3/10 right anterior ankle joint pain averaging 4-5 hours per day.  Symptoms were exacerbated by walking greater than 1 mile, running, and jumping.  He wore a right ankle brace when he knew he would be walking a lot.  “He denies any injury or serious concern with his left ankle.” The bilateral ankle examination revealed no tenderness, bruising, edema, or erythema.  Bilateral ankle ROM was full and without pain or crepitus.   

In the VA C&P examination the CI reported both ankles were injured during deployment in Iraq.  He complained of 2-4/10 pain with associated instability and buckling.  Symptoms were exacerbated by standing, walking, activity, and repetitive motion and were relieved by medication.  He wore a brace when he did strenuous activities.  The bilateral ankle examination revealed no swelling or tenderness of the tibias and fibulas.  Bilateral ankle ROM was dorsiflexion of 20 degrees (20 normal) and plantar flexion of 40 degrees (45 normal) without pain.  There was no pain, weakness, fatigue, or lack of endurance on repetitive (X5) ROM.  The diagnosis listed bilateral ankles strain.

The panel directed attention to its rating recommendation based on the above evidence.  As previously elaborated, the panel first consider whether each ankle condition remained separately unfitting, having been de-coupled from a combined PEB adjudication.  While the profile listed ankle pain, the MEB listed right ankle pain, and the PEB listed bilateral ankle pain.  The majority of complaints, pathology, imaging, and therapeutic interventions in the STR were unilateral and related to the right ankle.  The PEB assigned a 0% rating under an analogous 5003 code (arthritis, degenerative) citing bilateral ankle pain, stress reactions and no degenerative joint disease (DJD) by imaging, some lateral instability, and full ROM.  The VA assigned a 0% rating for the right, and a 0% rating for the left ankle under the 5271 code (ankle, limited motion of) based on the C&P examination citing ankle strain, normal imaging, ROM, and no evidence of limitation due to pain, fatigue, weakness, lack of endurance, or incoordination.  There was no ankle ankylosis (5270), subastragalar or tarsal joint ankylosis (5272), os calcis or astragalus malunion (5273) or excision of the astragalus (5274) for consideration under the respective codes.  Panel members agreed that the ROM values did not support a minimal rating under 5271 (ankle, limited motion of).  The panel also agreed a 10% rating was not supported based on VASRD §4.40 (functional loss) or §4.59 (painful motion).  The panel concluded that the evidence did not provide sufficient grounds for recommending separate disability ratings in this case, and that the combined rating of 0%, coded 5099-5003, is a good analogy to both the pathology and disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral ankle condition.  

Contended PEB Conditions:  Hypertension and Tinea Versicolor.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel 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:  In the matter of the back condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  In the matter of the bilateral ankle condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension and tinea versicolor conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  The single voter for dissent recommended modification of the rating for the back condition, but did not elect to submit a minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  The panel, 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 20150611, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170009059, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,