RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05174
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Infantryman, was medically separated for “degenerative joint disease [DJD], lumbar spine” 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 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 - 20090817	VARD - 20090811	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DJD, Lumbar Spine	5242-5003	10%	DJD, Lumbar Spine	5242-5003	10%	20090131	
Cervicalgia	Not Unfitting	Neck Condition	5237	10%		
PTSD		Post-Traumatic Stress Disorder	9411	30%	20090204	
Major Depressive Disorder (MDD)						
Right Knee Osteoarthritis		DJD, Right Knee	5003	10%	20090226	
Right Shoulder SLAP…Repair…		DJD, Right AC Joint	5003	10%		
Tinnitus		Tinnitus	6260	10%	20090218	
Bilateral (B/L)  HFSNHL		Bilateral Hearing Loss	6100	0%		
B/L… Upper & Lower…Neuropathy		No VA Placement	
Insomnia			
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

DJD, Lumbar Spine.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in March 2006 after being injured while riding in a military vehicle.  MRI in November 2006 showed spondylolithesis at L5-S1.  Electrodiagnostic studies in February 2008 were negative for radiculopathy.  A repeat MRI in July 2008 showed minimal degenerative disc disease at L3-4 and spinal X-rays noted “almost grade 1 spondylolisthesis” at L5, with no instability on flexion or extension.  This case was under the Joint Department of Defense/Veteran’s Administration Disability Evaluation Pilot Referral Program, in which the C&P examination was used as the basis for proposed ratings of all conditions the MEB determined failed retention standards.  

As such, the 31 January 2009 VA Compensation and Pension (C&P) examination, 8 months before separation, recorded complaints of continued daily but not constant low back pain, that radiated down the buttocks to the thighs posteriorly.  The pain was exacerbated by increased activity such as walking for more than 15 minutes or lifting greater than 30 pounds.  The CI reported losing 9 days of work in the last 9 months due to back pain and occasionally used a cane.  Physical examination showed an antalgic gait favoring the right which the CI attributed to right hip pain.  The CI reported 20 flare-ups per month, lasting 45 minutes to half a day.  If he was at work during flare-ups, he stayed at work, but tried to rest as much as possible.  There was no tenderness or deformity of the back.  There was no muscle spasm.  Lower extremity strength and reflexes were normal.  Back range of motion (ROM) was flexion of 90 degrees (normal) and combined ROM of 225 degrees (normal 240), with no additional limitation due to pain, weakness, fatigability or incoordination.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB accepted the VA-proposed rating of 10% and coding of 5242-5003 (degenerative arthritis of the spine – degenerative arthritis), based on the C&P examination, citing painful limitation of motion.  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the VA C&P examination proximate to separation.  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.  Although the CI reported 9 lost work days, the panel noted that lost work time is not necessarily equal to incapacitating episodes.  However, incapacitating episodes of 9 days total duration in the last 12 months would only support a 10% rating under the alternate VASRD rating formula for intervertebral disc syndrome.  There was therefore no higher than a 10% rating supported for the back condition.  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: PTSD, MDD, Insomnia, Cervicalgia, Mild Bilateral Hearing Loss, Tinnitus, Right Knee Osteoarthritis, Right Shoulder problems and Bilateral Upper and Lower Extremity Neuropathies.  The panel’s main charge is to assess the fairness of the PEB’s determination that these contended conditions were not unfitting.  According to the STR and MEB NARSUM, the CI was diagnosed with PTSD following his return from deployment in 2006.  The combat stressors included IED explosions, during which the CI was injured.  He was also diagnosed with MDD and insomnia was a symptom of his mental health (MH) disorders.  The 20 May 2009 MH MEB addendum, 4 months prior to separation, noted the CI was treated with Celexa and Prazosin which the CI noted were helpful.  However, he continued to report symptoms of frequent nightmares, sleep disturbance, hypervigilance, moderate startle response, road rage, anxiety and fears that his friends in the military would meet the same fate as his friends who died in Iraq, which caused him to isolate himself.  He reported increased compliance with MH treatment.  The CI was working as an administrative assistant at the VA.  He reported good relationships with his wife and children.  He reported he walked for leisure and read his bible.  The mental status examination showed a depressed, anxious mood with irritability and blunted affect.  The CI denied suicidal ideation.  The remainder of the examination was unremarkable.  The psychiatrist noted that the CI’s MH symptoms did not markedly affected his work as he was now functioning well, but they did affect his social functioning.  The CI’s MH disorders were permanently profiled as “S2,” which indicates a psychiatric condition which requires some limitations, but is not necessarily disqualifying for continued military service.  The CI was determined to meet retention standards for the MH disorders “even with prominent mood symptoms” as he had been able to perform the requirements of his military service.   

In regards to the neck and right shoulder conditions, the panel noted the permanent profile showed “U2,” indicating some limitations due to the neck condition that were not necessarily disqualifying for continued military service and no limitation for the right shoulder condition.  The MEB NARSUM indicated the CI did not fall below retention standards for either the neck or the shoulder conditions.  The right knee condition did not fail retention standards and was not implicated in the commander’s statement.  The hearing loss, tinnitus and bilateral upper and lower extremity neuropathies were not profiled or judged to fail retention standards.  

There was no performance-based evidence from the record that any of the contended conditions significantly interfered with satisfactory duty performance at the time of separation.  The panel concluded there was not a preponderance of evidence to overcome the PEB’s fitness determination for any of the contended conditions.  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 §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended MH disorders, cervicalgia, hearing loss, tinnitus, right knee osteoarthritis, right shoulder condition and bilateral upper and lower extremity neuropathies, 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.  

XXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXX:

	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.