RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXX	CASE:  PD-2017-04353
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070920

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Health Care Specialist, medically separated for “herniated nucleus pulposus L5-S1” and “right (dominant) elbow tendonitis,” rated 10% 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 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 - 20070827	VARD - 20080415	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Nucleus Pulposus L5-S1	5243	10%	Degenerative Disc Disease, Lumbar Spine 	5243	20%	20071201	
Right Elbow Tendonitis	5024	0%	Right Elbow Calcific Olecranon Bursitis, Status Post (S/P) Bursectomy	5019	10%		
Obstructive Sleep Apnea (OSA) 	Not Unfitting	Obstructive Sleep Apnea with Asthma	6847	50%	20071203	
Asthma						
Hepatitis B (Carrier State)		Hepatitis B	7345	0%		
Hypermetropia		Astigmatism, Refractive Error, and Hypermetropia	6099-6079	NSC	20071205	
Astigmatism						
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Herniated Nucleus Pulposus L5-S1.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in 1994 while training and competing as a member of the All Army Track and Field Team.  Despite physical therapy, medications and profiling, the pain progressively worsened over time.  An MRI on 30 March 2007 showed an L5-S1 disc protrusion.  During the orthopedics examination on 20 March 2007, 6 months prior to separation, the CI complained of increased 5/10 back pain.  Physical examination revealed normal thoracolumbar range of motion (ROM) and gait.  The spine exhibited normal appearance and there was no muscle spasm, but there was tenderness.  At the physical therapy MEB ROM study on 7 May 2007, 4 months prior to separation, the CI reported current pain level rated at 5/10, with pain ranging from 3-8/10.  After repetition, there was pain limited flexion of 80 degrees (normal 90) and combined ROM of 210 degrees (normal 240).   

During the 9 August 2007 MEB NARSUM examination, 1 month prior to separation, the CI reported worsening back pain with overnight hospital admission and a visit to the emergency room.  Physical examination showed 80 degree of flexion and 230 degrees of combined ROM.  Gait was normal without muscle spasm or scoliosis, but lordosis was slightly decreased and there was tenderness.

At the 1 December 2007 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported daily 9/10 low back pain with flare-ups of 10/10 two or three times per week.  He also complained of left leg parathesias and dyesthesias in a “vaguely L5 radicular pattern” and reported 4 days of physician-prescribed bedrest in the previous 12 months.  Physical examination showed ROM of 60 degrees flexion and combined ROM of 170 degrees; there was pain on the extremes of motion in all planes.  The examiner noted the loss of active ROM appeared volitional and exaggerated.  There was minimal tenderness of the lumbar spine, normal curvature of the spine and normal motor strength.   

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 localized tenderness.  The VA rated the back condition 20%, also coded 5243, based on the C&P examination, citing flexion limited to 60 degrees.

Panel members agreed that a 10% rating and no higher was justified for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.  The ROM recorded on the NARSUM was consistent with the PT and orthopedic ROM studies.  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 back condition.  

Right (Dominant) Elbow Tendonitis.  According to the STR and MEB NARSUM, the right hand dominant CI underwent right elbow surgery in January 2007 for right elbow tendonitis.  At the occupational therapy MEB ROM study on 15 May 2007, 4 months prior to separation, the CI reported right elbow stiffness, pain and limited ROM and strength.  After repetition, flexion was 123 degrees (normal 145) and extension was -10 degrees (normal 0).  Painful motion was not indicated.

The MEB NARSUM examination, 1 month prior to separation, noted complaints of some limited pronation and supination, but stated elbow pain limited him more.  On examination, there was good muscle tone without evidence of atrophy and full active ROM of both upper extremities.  Painful motion was not addressed.

At the C&P examination, 3 months after separation, the CI reported daily mechanical right elbow pain with flares four times a week.  Physical examination showed a well-healed, non-tender scar overlying the olecranon process, without evidence of inflammation or disfigurement.  Extension was 0 degrees and flexion was 110 degrees which increased to 124 degrees with repetitive motion.  Pronation was to 80 degrees (normal) and supination was at 75 degrees (normal 85) with pain.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right elbow condition 0%, coded 5024 (tenosynovitis), citing persistent pain without compensable limitation of motion.  The VA rated the right elbow condition 10%, coded 5019 (bursitis), based on the C&P examination, citing painful motion.

The panel agreed there was no limitation of motion that supported a rating under any of the applicable limitation of motion codes (5206, 5207 or 5208) or under any applicable forearm code (5213 or 5209).  However, panel members agreed, a 10% rating was justified for painful motion and functional loss IAW VASRD §4.59 and §4.40, as recorded at the C&P examination.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right elbow condition, coded 5024.  

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA), Asthma, Hepatitis B, Hypermetropia and Astigmatism.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Neither the hypermentropia or astigmatism conditions were profiled, implicated in the commander’s statement or judged to fail retention standards.  The panel noted the asthma and hepatitis B were designated as P2 on the permanent profile, but neither condition was judged to fail retention standards or implicated in the commander’s statement.  The OSA condition was profiled with a P3 designation.  The profile disallowed an assignment to areas without a reliable source of electric power” or where noise discipline is indicated during the hours of sleep.”  Although the OSA failed retention standards, it was not implicated in the commander’s statement as interfering with duty performance and the STR showed it was well controlled with CPAP.  There was no performance-based evidence from the record that any of the 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 back condition and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  In the matter of the right elbow condition, the panel recommends a disability rating of 10%, coded 5024 IAW VASRD §4.71.  In the matter of the contended obstructive sleep apnea, asthma, hepatitis B, hypermetropia and astigmatism, 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.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Herniated Nucleus Pulposus L5-S1	5253	10%	
Right Elbow Tendonitis	5024	10%	
COMBINED	20%	

The following documentary evidence was considered:

AR20190004416, XXXXXXXXX

Dear XXXXXXXXX 
The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability. I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation. This will not result in any change to your separation document or the amount of severance pay. A copy of this decision will be filed with your Physical Evaluation Board records. I regret that the facts of the case did not provide you with the outcome you may have desired.

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 Department of Veterans Affairs.