RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-04445
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050225

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Air Traffic Control Operator, medically separated for “low back pain” and “allodynia, top of both feet,” rated 10% and 0% respectively, with a combined disability rating of 10%. 

CI CONTENTION:  “The issues that the PEB failed to acknowledge were nerve damage to my left and right legs, incontinence, sleep apnea and depression and of course chronic low back pain.”  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 – 20041112	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5241	10%	No VA Examination Proximate to Separation in Evidence	
Allodynia, Top of Both Feet	5099-5003	0%		
Sleep Apnea	Not Unfitting		
Dysthymic Disorder	Not Unfitting		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent embolization in February 2000 with partial vertebrectomy and fusion at L4-S1.  During the 14 August 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 18 months prior to separation, the CI reported constant low back pain, tingling on the lateral side of the left calf and numbness and tingling in both hands.  Physical examination recorded decreased range of motion (ROM) in both legs due to pain.

The 11 January 2004 MEB NARSUM examination, 13 months prior to separation, noted complaints of back pain and weakness.  The CI reported walking with a cane due to occasional falls.  She had left L5 weakness and numbness that had improved but not completely resolved.  
Physical examination showed an antalgic gait, tenderness and decreased ROM.  There was 4/5 motor weakness in the left lower extremity without documented muscle atrophy.  At the MEB ROM study by physical therapy (PT) on 23 July 2004, 7 months prior to separation, the examiner used an inclinometer to measure flexion of 25 degrees (normal 90).  There was 80 degrees of combined ROM after repetition, measured with both an inclinometer and goniometer (rotation); painful motion was present.  The subsequent MEB ROM study by PT on 24 November 2004, 3 months prior to separation, measured with an inclinometer, showed flexion of 30 degrees, after repetition.  Combined ROM, after repetition, was 105 degrees; painful motion was present throughout testing.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5241 (spinal fusion), citing decreased ROM of the thoracolumbar spine due to pain.  The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the two PT ROM examinations proximate to separation.  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 recommends a disability rating of 40% for the back condition, coded 5241.  

Allodynia, Top of Both Feet.  The PEB combined the left and right foot conditions under a single disability rating coded 5099-5003 IAW the US Army Physical Disability Agency (USAPDA) pain policy.  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 noted that “bundling,” the combining of two or more major joints, may be permissible under VASRD code 5003 rating requirements and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  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.  

According to the STR and MEB NARSUM, the CI’s bilateral allodynia (central pain sensitization following normally non-painful, often repetitive, stimulation) began immediately following spinal surgery in April 2001.  The CI reported pain on the top of both feet such that the pressure of stockings or socks produced pain.  

During the MEB examination, 18 months prior to separation, the CI reported sensitivity to touch of the bilateral feet and was unable to tolerate shoes or socks.  Physical examination revealed marked sensitivity to light touch of the dorsum of both feet.  The 28 August 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of pain on the top of both feet with inability to wear closed toe shoes or boots.  The pain was accompanied by sweating and a feeling of extreme warmth to the touch, but produced a sensation of coldness.  The physical examination referenced a July 2004 examination that reportedly showed normal pulses in the bilateral lower extremities, warmth to the touch, fairly normal distribution of hair on bilateral legs and a slight puffiness or edema bilaterally.  The examiner opined that the condition of allodynia was slowly resolving and the pain was slight and intermittent. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the allodynia 0%, analogously coded 5099-5003 (arthritis, degenerative), citing slight and frequent pain IAW the USAPDA pain policy.  The panel first considered if the left and right foot conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Panel members agreed the evidence reasonably justified that the functional limitations of the left and right foot conditions contributed to the CI’s inability to perform military duties, and accordingly separate disability ratings are recommended.

The panel considered whether the intention of the PEB was to adjudicate the conditions as primary pain conditions versus primary joint or muscle conditions.  The NARSUM examiner clearly diagnosed the condition as a pain condition that presented after surgery with possible injury to the left L5 nerve distribution.  The NARSUM examination documented edema of the legs, mild motor weakness on the left, poor balance and foot sensitivity to touch.  Several months later, the addendum noted pain on the top of each foot with sensitivity to contact with socks or stockings and the inability to wear closed toe shoes due to nerve irritation.  There was no disturbed circulation or evidence of tropic changes.  

The panel considered rating each foot under codes 5003, 5277 (weak foot, bilateral) and 5284 (foot injuries, other), but was unable to find a higher rating under any of those codes for either foot.  The panel next considered if rating the foot conditions would be appropriate under a nerve code for neuritis.  A rating for neuritis is warranted when there is loss of reflexes, muscle atrophy, sensory disturbances or constant pain, with a maximum achievable rating of moderate under the specific nerve involved.  Panel members agreed that neither foot condition met the rating criteria for neuritis, nor were there sufficient symptoms that would support rating under any nerve code.  The panel concluded there was no rating for either foot higher than the combined 0% rating adjudicated by the PEB under any applicable code.  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 allodynia.  

Contended PEB Condition:  Dysthymic Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The condition was not profiled or judged to fail retention standards and 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 there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

Contended PEB Condition:  Sleep Apnea.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  Although the condition was judged to fail retention standards, it was not profiled.  The STR showed a history of sleep apnea dating back to 2001.  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 there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71.  In the matter of the allodynia and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  In the matter of the contended sleep apnea and dysthymic disorder, 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5241	40%	
Allodynia	5099-5003	0%	
COMBINED	40%	

The following documentary evidence was considered:

AR20190004439, XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) to re-characterize your separation as a disability retirement with the
combined disability rating of 40% effective the date of your medical separation for disability with
severance pay. Enclosed is a copy of the Board’s recommendation and record of proceedings
for your information.
The re-characterization of your separation as a disability retirement will result in an
adjustment to your pay providing retirement pay from the date of your original medical
separation minus the amount of severance pay you were previously paid at separation.
The accepted DoD PDBR recommendation has been forwarded to the Army Physical
Disability Agency for required correction of records and then to the U.S. Defense Finance and
Accounting Service to make the necessary adjustment to your pay and allowances. These
agencies will provide you with official notification by mail as soon as the directed corrections
have been made and will provide information on your retirement benefits. Due to the large
number of cases in process, please be advised that it may be several months before you
receive notification that the corrections are completed and pay adjusted. Inquiry concerning
your correction of records should be addressed to the U.S. Army Physical Disability Agency,
(AHRC-DO).
A copy of this decision has also been provided to the Department of Veterans Affairs.