RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01805
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060529

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Telecommunication Operations Chief, medically separated for “chronic low back pain,” “chronic bilateral lower extremity pains,” and “exertional dyspnea/chest pain,” rated 10%, 0% and 0%, respectively, with a combined disability rating of 10%.

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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20060227	VARD - 20070501	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	L4-L5 & L5-S1 Degenerative Disk Disease	5242	0%	20060516	
Chronic Bilateral Lower Extremity Pains [Tibia, Calf]	5022	0%	Chronic Bilateral Lower Extremities [Knee, Calf]	5024	NSC		
Exertional Dyspnea/Chest Pain	5009-5003	0%	Atypical Chest Pain	7005	NSC		
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%		
Left Shoulder Pain		Left Shoulder Residual Scar, Arthroscopy	7804	0%		
Migraine Headaches		Headaches	8100	NSC		
Hypertension		No VA Placement	
Gastroesophageal Reflux Disease			
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in 1998 when he was hit in the back by poles during a tornado. A lumbar MRI in November 2005 revealed a disc protrusion at L5-S1 with neuroforaminal narrowing; surgical intervention was not indicated.    

The 8 November 2005 MEB NARSUM examination, 7 months prior to separation, noted CI complaints of lower back pain, which occasionally radiated into his legs, and was exacerbated by prolonged sitting, bending or running.  Physical examination showed lumbar spine tenderness.  Thoracolumbar ROM, measured by inclinometer, was flexion to 90 degrees (normal) with a combined ROM of 230 degrees (normal 240), and painful motion.

At the 16 May 2006 VA Compensation and Pension (C&P) examination, less than 1 month before separation, the CI reported back pain that occasionally traveled down the right leg to the back of the foot.  The provider noted that “he lacked 8 inches of touching his toes [approximately 80-90 degrees]”with flexion and that he had subjective pain with movements but no tenderness on any aspect of the spinal column; posture and gait were normal.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing spinal tenderness.  The VA rated the low back condition 0%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing a noncompensable evaluation.  The panel agreed that a 10% rating, but no higher, was justified for combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB 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 with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain.  

Bilateral Lower Extremity Pains. The PEB combined the left and right foot conditions under a single disability rating, coded 5022 and rated 0%.  This 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.  The panel’s initial charge in this case was therefore directed at determining if 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.  

According to the STR and MEB NARSUM, the CI’s bilateral calf pain condition began in January 2005 as bilateral tibia stress reactions.  An orthopedic examination on 5 December 2005, 6 months before separation, documented bilateral tenderness of the Achilles insertion and full ROM of both lower extremities.  There was also bilateral tenderness of the posterior tibial tendon; however, the CI was able to perform toe raises and had normal hind foot varus upon standing.  Painful motion was not addressed. 

The MEB NARSUM examination noted CI complaints of bilateral calf pain that was worse in the morning and decreased after moving; running or walking exacerbated the pain.  Physical examination reflected the findings of the December orthopedic examination in addition to ROM measurements that showed right ankle dorsiflexion to 10 degrees (normal 20) and plantar flexion to 35 degrees (normal 45), with painful motion.  Left ankle dorsiflexion was to 15 degrees and plantar flexion to 45 degrees; painful motion was present.   

At the C&P examination, the CI reported bilateral lower extremity pain from the knees down, with intermittent swelling in the calves and feet.  Physical examination revealed a normal gait and no tenderness, swelling or redness.  Bilateral knee and ankle ROM was full and the functional assessment noted only mild and sporadic effect on his daily routine.  A bone scan dated 2 June 2006 showed no stress fractures.  

As noted above, the PEB bundled the right and left calf pain (secondary to stress reactions) and applied a single 0% rating coded 5022 (periostitis), citing application of the US Army Physical Disability (USAPDA) pain policy.  The VA did not service connect the bilateral lower extremities.  The panel considered that the objective findings and associated disability for each leg were identical with minimal pathology, and concluded there was not a preponderance of evidence in the service records which overcame the presumption that the bundled lower extremity conditions were reasonably considered separately unfitting.  

The panel then directed attention to its rating recommendation based on the above evidence.   A compensable rating under 5022 is based on limitation of motion of affected parts, and panel members agreed that there was insufficient evidence of painful motion with functional loss to support a 10% rating (based on §4.59, §4.40 and §4.45) for either lower extremity.  Additionally, the panel noted there was no loss of power or lowered threshold of fatigue for either extremity which would attain a minimum rating under code 5310 for moderate disability.  While the panel could recommend disability ratings of 0% for each lower extremity, this provides no benefit to the CI.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral lower extremity condition. 

Exertional Dyspnea/Chest Pain.  According to the STR and MEB NARSUM, the CI’s exertional chest pain began in about February 2004 as retrosternal (pain behind the sternum) tightness at rest.  In January 2005, EKG, echocardiogram and Holter tests were normal.  Exercise stress testing, cardiac imaging, and cardiac catheterization for coronary artery disease were also within normal limits, and in April 2005, he was diagnosed with atypical chest pain.

The MEB NARSUM examination noted CI complaints of chest discomfort with running, walking or climbing steps, and which required him to stop the activity upon pain onset.  Physical examination showed clear lungs and heart with regular rate and rhythm.  Heart sounds were normal and there were no murmurs detected. 

At the C&P examination, the CI reported intermittent chest pain.  The provider noted he was in no apparent distress with stable and normal vital signs.  There was no tenderness and the chest wall was normal.  Breath sounds were normal and the cardiac examination was unremarkable.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the exertional dyspnea/chest pain condition 0%, analogously coded 5099-5003, citing the USAPDA pain policy.  The VA did not service-connect the exertional dyspnea/chest pain condition, based on the C&P examination, citing subjective pain and no etiology/pathology to render a diagnosis.  Members concluded that there was no evidence to support a rating higher than that adjudicated by the PEB.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the exertional dyspnea/chest pain.  

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA), Left Shoulder Pain, Migraine Headaches (MHAs), Hypertension (HTN), and Gastroesophageal Reflux (GERD).  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The MHAs, HTN, and GERD conditions were not profiled, implicated in the commander’s statement or judged to fail retention standards.  The OSA was profiled P3 (with the requirement for electricity access for continuous positive airway pressure machine use) and the left shoulder was profiled U2.  Evaluation reports covering December 2003 through June 2005 showed successful/excellent ratings with no indication that OSA or the shoulder pain interfered with the CI’s ability to perform in his military specialty.  Neither condition was specifically implicated by the commander’s statement, nor was there any performance-based evidence from the record that these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the chronic low back pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the bilateral lower extremity condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the exertional dyspnea/chest pain condition and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  In the matter of the contended OSA, left shoulder pain, MHAs, HTN, and GERD conditions, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends 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 20170223, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180010719, 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,					      
Enclosure