RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02105
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050209

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve O5, Field Artillery Officer, medically separated for “chronic low back pain…,” with a disability rating of 10%.

CI CONTENTION:  “As noted in the attached letter brief, the PEB failed to consider the forward flexion range-of-motion assessment for thoracolumbar spine that should have been rated at 40% disability.  Moreover, the PEB and MEB fail to consider and find unfitting many other conditions addressed in my brief.”  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 - 20041001	VARD - 20080219	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	10%	Postoperative Intervertebral Disc Syndrome…	5293	10%	20080107	
			Radiculopathy, Right Lower Extremity	8629	0%	20080107	
			Radiculopathy, Left Lower Extremity	8629	0%	20080107	
Irritable Bowel Syndrome and GERD	Not Unfitting	Gastroesophageal Reflux Disease and Irritable Bowel Syndrome	7346-7319	30%	20080107	
Neurogenic Bladder	Not Unfitting	Prostatitis, Benign Prostatic Hyperplasia (BPH) with Lower Urinary Tract Symptoms, and Bladder Dysfunction	7527	0%	20080107	
Mood Disorder Secondary to Chronic Pain	Not Unfitting	Depressive Disorder, Not Otherwise Specified	9434	30%	20080122	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a history of chronic back pain with a left lower extremity (LLE) radiculopathy, and had undergone surgical laminectomies in 1992 and 1995.  His symptoms were exacerbated during a deployment to Afghanistan in 2003, and persisted (with LLE radiation and intermittent sensory complaints) after redeployment.  Imaging demonstrated degenerative disc disease (L4-S1, “minimal” bulge L4/5 with possible left neural encroachment); and, electrodiagnostic testing (EMG) was interpreted as a “chronic, stable” left L5 radiculopathy.  There were multiple STR entries that documented normal (5/5) motor strength and reflexes, with none to the contrary; although, there were some that noted LLE sensory deficits.  There was a paucity STR clinical entries that documented range of motion (ROM).  There were two (15-16 months before separation) that recorded measured flexion improving from 45 to 60 degrees (normal 90) and one (2 months later) that estimated “moderately limited” flexion; and, there were no entries that implicated more significant ROM limitation.  There were numerous entries that documented a normal gait, but one that noted an antalgic gait.  There was no STR documentation of incapacitating episodes.  Surgery was not indicated and conservative treatment did not result in sufficient improvement to allow unrestricted duty.  The MEB forwarded “chronic low back pain” for PEB adjudication.  

The NARSUM examination on 15 April 2004 (10 months before separation) documented “marked ... constant” low back pain with LLE radiation (no motor or sensory symptoms noted) that prohibited running and prolonged standing or walking.  There was no evidence from the NARSUM (or preceding STR entries) that there had been any interim injury or exacerbation of the condition.  The physical examination recorded a normal gait, tenderness, and normal neurological findings (5/5 strength, intact sensation, symmetric reflexes).  Thoracolumbar ROM was documented as flexion to 30 degrees (normal 90) with a combined ROM of 130 degrees (normal 240), specifying pain-limited motion.  

A physical therapy (PT) consult was conducted on 11 May 2004 (a month after the NARSUM).  That examiner documented a normal gait and posture, “slightly tender” lumbar spine, and normal neurological findings (5/5 strength).  Thoracolumbar ROM was recorded as flexion decreased by 10% (~80 degrees), extension decreased by 40% (~20 degrees, normal 30), bilateral flexion decreased by 10% (~25 degrees, normal 30), and normal bilateral rotation (30 degrees); yielding a combined ROM of ~210 degrees.  A statement of issues prepared by the CI, dated 23 June 2004 (8 months before separation), documented that his back spasms were now intermittent although increasing again.  An entry from a pain specialist, dated 14 September 2004 (5 months before separation), documented persistent LLE radicular pain that was “somewhat controlled” by treatment modalities.  

The CI had carried a 40% lumbar rating from the VA since 1995 and did not undergo a follow-up VA Compensation and Pension (C&P) examination until 7 January 2008, nearly 3 years after separation.  At that examination he reported persistent pain rated 9/10 with bilateral leg radiation.  The examiner recorded a normal gait (but using a cane) and the absence of tenderness, spasm, or radiating pain on movement.  Neurological findings were normal except for bilateral proximal sensory deficits.  Measured ROM was flexion to 75 degrees and combined ROM of 210 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The formal PEB’s 10% rating under code 5243 (intervertebral disc syndrome) cited tenderness and ROM “limited by pain,” suggesting application of Army Regulation 635-40 (B-29, e).  The VA‘s ultimate 10% rating under code 5243 cited the ROM evidence from the above 2008 C&P examination.  The VA also conferred separate radiculopathy ratings of 0% each, citing impairment confined to sensory deficits and failure to meet minimum compensable criteria.  
The ROM evidence in this case was conflicting.  The flexion to 30 degrees recorded in the NARSUM meets the threshold of the 40% criterion of flexion to “30 degrees or less.”  The ROM evidence from STR clinical entries over a stable 18-month clinical course, however, indicated that the ROM had improved from the 20% rating range (flexion from 30 to 60 degrees) to the 10% range (flexion from 60 to 85 degrees).  The ROM evidence from the PT examiner soon after the NARSUM contrasted sharply with that from the NARSUM and was consistent with the totality of the ROM evidence from the STR, as well as with the post-separation course reflected by the C&P examination (acknowledging that the latter was temporally remote from separation).  Although the NARSUM ROM evidence was the most compliant with VASRD §4.46 (accurate measurement), member consensus was that the isolated flexion measurement from the NARSUM did not carry sufficient probative weight as the sole support for a 40% rating recommendation; and, that the preponderance of the ROM evidence was best aligned with 10% criteria.  It was additionally considered that such severe ROM limitation was not clinically congruent with the pathology (mild non-surgical disc disease) and that there was no explanation for the deterioration in ROM confined to the formal MEB evaluation.  There was insufficient support of the VASRD §4.71a 20% criterion of abnormal gait or contour to sustain a recommendation on that basis, and there was no documentation of incapacitating episodes that would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar disc condition.

Contended PEB Conditions:  Irritable Bowel Syndrome (IBS) and Gastroesophageal Reflux Disease (GERD), Neurogenic Bladder, and Mood Disorder.  The CI developed gastrointestinal complaints during deployment that were evaluated upon redeployment and diagnosed as IBS and GERD.  Persistent symptoms, relatively well controlled on medications, were described in the NARSUM.  The CI also developed urinary frequency and urgency during deployment, and the work-up after redeployment (including cystoscopy and urodynamic testing) was negative.  A MEB urology addendum identified the etiology as an enlarged prostate, directed treatment accordingly, and opined that “this is not a duty-limiting diagnosis.”   

There were no mental health (MH) treatment notes in the available STR; but, a psychiatric addendum to the NARSUM described the onset of a “depressed and irritable mood” that developed in the context of the pain from the back condition and MEB stressors.  The CI was being treated with antidepressants at separation.  The diagnosis “mood disorder secondary to chronic pain” was submitted to the PEB and the MEB psychiatrist opined that condition met retention standards.  

There was a P2 permanent profile for IBS/GERD and neurogenic bladder, and the psychiatric profile remained S1.   A P2 profile does not mandate MEB referral and is not typically associated with unfitting conditions.  The commander’s performance statement listed the IBS/GERD and urology diagnoses without specifying functional limitations, and did not note any MH diagnosis or issues.  

The panel’s main charge was to assess the fairness of the PEB’s determinations that the above conditions were not unfitting.  Members agreed that there was insufficient performance-based evidence indicating that any of the above conditions interfered with duty requirements to an extent that would have prohibited further military service.  After due deliberation in consideration of the preponderance of the evidence, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determinations for the gastrointestinal, urologic, and MH conditions; thus, none were eligible for disability rating.

PANEL FINDINGS:  In the matter of the lumbar disc condition and IAW VASRD §4.71a, the panel by a majority vote recommends no change in the PEB adjudication.  The single voter for dissent recommended re-characterization to 40% and did not elect to submit a minority opinion.  In the matter of the contended irritable bowel syndrome, gastroesophageal reflux disease, neurogenic bladder, and mental health conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150728, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170005396, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	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,					      
						      					
Enclosure