RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00606
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040504

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Motor Transport Operator, medically separated for “chronic neck pain,” “chronic pain due to thoracolumbar herniated nucleus pulposus” and “chronic foot pain, due to Achilles tendonitis” rated 10%, 10%, and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  Review all conditions.  The 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 review of disability ratings assigned 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 or non-compensable.  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 determination 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(s) 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 - 20040322	VARD - 20040804	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5299-5237	10%	Chronic Neck Pain	5299-5243	Deferred*	20040714
&
STR	
Chronic Pain, Thoracolumbar Herniated Nucleus Pulposus…	5243	10%	Chronic Back Pain…	5237-5243	10%		
Chronic (Left) Foot Pain Due to Achilles Tendonitis	5099-5003	0%	Pes Planus	5276	NSC		
			Left Achilles Tendonitis 	5271-5024	Deferred*		
Hyperlipidemia	Not Unfitting	No VA Placement*	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	
* Later VARDs showed 5299-5243 (neck) rated at 10%, 5271-5024 (feet) rated at 0%, both effective 20040505; and high cholesterol (7199-7119) as NSC.  

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in May 2003.  The CI was driving in convoy when the vehicle hit a large pothole.  The CI was thrown upward and struck his head against the ceiling and then was pushed downward from the impact.  He initially had pain in his neck, left middle finger, left groin (see below), and left ankle (se below).  Magnetic resonance imaging scans (MRI) showed mild narrowing of the C3-C4 neural foramina.  

During the 4 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported neck pain.  Physical examination showed the “spine” with “decreased ROM (range of motion)” (Note:  The spine segment was not specified and degrees of ROM were not listed).  The 19 January 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of neck pain and left upper extremity radiculopathy.  Physical examination from 10 December 2003, 5 months prior to separation, showed an antalgic gait and pain when sitting for prolonged periods (see back and feet conditions below).  There was full ROM of the neck and tenderness to palpation of the left paracervical muscles.  The 1 March 2004 NARSUM addendum, 2 months prior to separation, was silent in regards to the neck condition.  

At the 8 February 2005 Compensation and Pension (C&P) evaluation, 9 months after separation, the CI reported chronic neck pain (Note:  The 14 July 2004 C&P evaluation did not include examination of the cervical spine).  Physical examination showed an antalgic gait with neck flexion of 40 degrees (normal 45) and combined ROM of 250 degrees (normal 340).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, analogously coded 5299-5237 (cervical strain), citing without limitation of motion or neurologic abnormality with tenderness.  The VA also rated the neck condition 10%, analogously coded 5299-5243 (intervertebral disc syndrome) based on the C&P examination 9 months after separation, after initially deferring the neck rating pending examination.  

The panel agreed that a 10% rating, but no higher, was justified for tenderness as reported on the NARSUM examination, or for limitation of flexion (greater than 30 degrees but not greater than 40 degrees) and/or combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the C&P examination.  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.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  

The panel next considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the neck condition, 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 objective evidence of a radiculopathy with functional impairments (such as weakness) that directly impacted fitness for duty.  The panel therefore concluded that 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 panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the neck pain condition.  

Back Pain.  According to the STR and MEB NARSUM, the CI’s back condition began in 1991 due to lumbar strain without specific injury or trauma.  MRI showed a disc protrusion at T11 to T12 and a disc protrusion at L5 S1.  The CI had back pain with pain radiating into the left leg and left groin.  Urology evaluation was negative for any intrinsic groin or testicular defect.  During the 4 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported back pain and the examination noted non-specific decrease spine ROM.  

The 19 January 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of back and groin pain.  Physical examination showed there was an antalgic gait and pain when sitting for prolonged periods (see feet condition below).  There was full ROM of the back with “some paresthesias radiating down his left leg into his foot.”  There were no significant neurologic deficits.  The 1 March 2004 NARSUM addendum, 2 months prior to separation, noted complaints of left-sided groin pain and left lower lumbar pain.  Physical examination from 3 February 2004, 3 months prior to separation, showed thoracolumbar ROM with flexion of 65 degrees (normal 90) and combined ROM of 185 degrees (normal 240) with pain limiting active ROM less than passive ROM.  The examiner also recorded limited hip ROMs indicating that was likely due to pain in the lower back.  

At the 14 July 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported low back pain that radiated into his left groin and up into his neck.  Physical examination showed a normal posture and gait.  The CI could stand on heels and toes without difficulty and “had no difficulty in removing his pants, socks and shoes.”  There was no tenderness, “but the (CI) exhibited extreme guarding and resisted any attempts to determine the passive ROM…”  Active ROM was flexion to 50 degrees (normal 90).  “The rest of motions about his lumbosacral spine were extremely guarded and he would perform them only 50% of normal.”  His sciatic stretch tests and Patrick's test were negative (for radiculopathy).  Motor, sensory and reflex testing were normal, and there was no muscle atrophy.  The examiner noted prior MRI record revealed a protrusion of the annulus at L5-Sl with the annulus abutting but not compressing the S1 nerve root (no herniated disc).  In the diagnosis section, the physician stated “The (CI) exhibited considerable guarding about his lumbosacral spine, which I think was on a voluntary basis, and it is this examiner's opinion that the guarding was exaggerated and although he had a limitation of motion about his lumbosacral spine it was not due to organic pain.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing a combined ROM of 185 degrees.  The VA rated the back condition 10%, analogously coded 5237-5243 (lumbosacral strain/intervertebral disc syndrome), indicating the C&P examination 2 months after separation was not valid for ROM rating, and citing STR evidence of forward flexion of 60 degrees but not greater than 85 degrees.  The panel adjudged that the NARSUM and NARSUM addendum had the highest probative value for rating at separation.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the NARSUM addendum examination.  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.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  

The panel noted that the MEB specified nerve impingement causing chronic left groin pain (radiculopathy) and the PEB rendered a de facto “not unfitting” determination by explicitly addressing “without neurologic abnormality” in the disability description, and the CI contended this condition.  Radiculopathy is therefore in the panel’s scope of review and will be addressed.  

The panel next considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, 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 objective evidence of a radiculopathy with functional impairments (such as weakness) that directly impacted fitness for duty.  The panel therefore concluded that 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 panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back pain condition.  

Chronic (Left) Foot Pain due to Achilles Tendonitis.  According to the STR and MEB NARSUM, the CI’s foot condition began in May 2003 after injuring his ankle when his vehicle hit a pothole during a convoy (see neck injury above).  The CI was removed from theater for further evaluation for diagnoses of left Achilles tendinitis (and middle finger sprain and chronic orchalgia [groin pain]).  

During the 4 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, physical examination showed pain to the Achilles tendon on ROM (painful motion).  The 19 January 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of “I can’t walk well” with increased foot pain with walking and standing.  He had difficulty walking on uneven ground or climbing stairs and walked with a CAM walker and cane.  Physical examination from 10 December 2003, 5 months prior to separation, showed an antalgic gait.  There was tenderness to palpation over the left Achilles tendon with intact vibratory sense and no significant neurologic deficit to the foot.  The examiner indicated that the CI was also seen by podiatry for persistent Achilles tendonitis, who recommended continuation of the CAM walker, anti-inflammatory medications, and physical therapy.  

The 1 March 2004 NARSUM addendum, 2 months prior to separation, noted complaints of chronic left heel pain and limited motion, not relieved by heel lifts, 3 months of cane and CAM walker, or medication (including injection).  Physical examination from 3 February 2004 showed left ankle ROM with dorsiflexion of 5 degrees (normal 20) and plantar flexion of 40 degrees (normal 45).  Prior X-rays documented a heel spur.  

The 8 February 2005 C&P evaluation, 9 months after separation, documented physical findings of an antalgic gait.  Examination of the left Achilles tendon revealed no swelling or pain on palpation.  The left ankle had full ROM (extension of 45 degrees, plantar flexion of 55 degrees) without pain.  The examiner indicated that “he walks without a limp.”  The CI indicated that at one time he wore a plastic brace on the left ankle for his Achilles tendonitis, but did not wear that anymore.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic (left) foot pain due to Achilles tendonitis condition 0%, analogously coded 5099-5003 (degenerative arthritis).  The VA initially deferred the left Achilles tendonitis conditions, and then rated it 0%, coded 5271-5024, based on the C&P examination 9 months after separation.  The VA also adjudicated the foot condition of pes planus as not service connected, coded 5276 (flatfoot, acquired).  

The panel majority agreed that the NARSUM addendum ROM examination proximate to separation had the highest probative value for rating at separation and that the more remote VA examination showed post-separation improvement.  The NARSUM examination was consistent with the “moderate” limitation of motion required for the 10% rating under code 5271 (ankle, limited motion), and was supported by the presence of an abnormal gait.  Alternatively, the MEB examination (DD Form 2808) documented evidence of painful motion causing functional loss supporting the 10% rating (based on §4.40, §4.45 and §4.59).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the chronic (left) foot pain due to Achilles tendonitis condition, coded 5024-5271.  

Contended PEB Condition:  Hyperlipidemia.  The panel’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, implicated in the commander’s statement or judged to fail retention standards.  Hyperlipidemia is an abnormal laboratory test and not a disability condition.  There was no performance-based evidence from the record that the condition 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 the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the neck pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the chronic (left) foot pain due to Achilles tendonitis condition, the panel majority recommends a disability rating of 10%, coded 5024-5271 IAW VASRD §4.71a.  In the matter of the contended hyperlipidemia condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  The single voter for dissent recommends no change and elected not to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  
The panel 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	
Chronic Neck Pain…	5299-5237	10%	
Chronic Back Pain…	5243	10%	
Chronic (Left) Foot Pain due to Achilles Tendonitis	5024-5271	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160914, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170016308, XXXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended that your percent of disability be increased.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I regret to inform you that I reject the Board’s majority recommendation and accept the Board’s minority opinion 
as accurate that [your final Physical Evaluation Board disability rating remains unchanged.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.

	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 counsel you listed on your application.

Sincerely,

Enclosure