RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02761
BRANCH OF SERVICE:  army	SEPARATION DATE:  20090601

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E8, Human Resources Specialist, medically separated for “lumbar spondylosis” with a 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 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 Physical Evaluation Board (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 - 20090325	VARD - 20090316	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Spondylosis	5242	10%	Lumbar Spondylosis ... Right Sciatica	5242	10%	20081014	
Right Knee Osteoarthritis	Not Unfitting	Right Knee Pain	5260	NSC		
Bilateral Sensorineural Hearing Loss, with Tinnitus	Not Unfitting	Bilateral Hearing Loss	6100	0%	20080909	
		Tinnitus	6260	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had a chronic history of low back pain dating to a strain injury in 1970.  The condition was exacerbated by several re-injuries and evolved into persistent pain no longer adequately responsive to treatment.  Imaging (X-rays, MRI) demonstrated diffuse degenerative changes and disc disease at L3-S1 and bulge at L5-S1 with bilateral foraminal encroachment.  The pain was associated with intermittent right sciatic radicular pain, but neurological examinations were normal (other than occasional minor sensory deficits of the right lower leg), and orthopedics opined that surgery was not indicated.  The panel was unable to obtain routine outpatient records and provider notes missing from the available STR, thus the majority of the history and probative evidence were sourced from the documents referenced below. 

An orthopedic consultation was conducted on 18 Mach 2008, 15 months before separation, which was utilized as an addendum by the NARSUM provider.  The orthopedist documented non-specific low back pain (no note of associated sciatic complaints) that was exacerbated by “running, distance walking and heavy lifting.”  The physical examination recorded a normal gait, a normal spinal contour, no tenderness or spasm, and normal neurological findings except for a minor sensory deficit of the distal right lower extremity.  Measured thoracolumbar range of motion (ROM) was flexion to 90 degrees (normal) with combined ROM of 235 degrees (normal 240), specifying painful motion at end-ranges but no ROM degradation with repetition.

The 14 October 2008 VA Compensation and Pension (C&P) examination, 8 months before separation, documented daily low back pain with “improving” right sciatica (no subjective weakness and rare sensory) that was rated 4-5/10 at baseline with no elaboration of functional limitations.  The physical examination recorded an “antalgic gait favoring [the] right leg” that in context was more likely attributable to the knee (addressed below).  The examiner noted tenderness without spasm or guarding, no note of abnormal spinal contour and normal neurological findings (motor, reflexes and sensory).  Measured ROM was flexion to 90 degrees and combined ROM of 190 degrees, specifying painful motion at end-ranges but no ROM degradation with repetition.

The 4 February 2009 NARSUM examination (DoD/VA Pilot Program), 4 months prior to separation, referenced the above orthopedic consultation and duplicated the symptoms and physical examination findings from the VA C&P examination.  The NARSUM examiner provided a functional assessment of sitting tolerance to 30-45 minutes, walking to a half mile, standing for 30-40 minutes and “problems with lifting and carrying.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), the same rating and code from the VA decision as per guidelines of the DoD/VA Pilot Program.  The VA referenced the C&P examination and cited the applicable VASRD §4.71a spine criterion for combined ROM (see below).  The VA subsumed the right sciatica in its primary rating without conferring additional rating of neuropathy.  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 service orthopedic and VA ROM examinations.  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 evidence of intervertebral disc syndrome which would permit rating based on incapacitating episodes, nor was there documentation of any such episodes.  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 back condition.

Contended PEB Conditions:  Right Knee Osteoarthritis and Bilateral Sensorineural Hearing Loss with Tinnitus.    Both the knee and hearing conditions met Army retention standards and neither of these conditions were implicated in the commander’s performance statement.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  Furthermore, both conditions were subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral) that stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determinations for the right knee and hearing conditions, so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended right knee and bilateral hearing loss 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 20170424, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190007163, 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.