RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX  	CASE:  PD-2017-05449
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve O4, Clinical Psychologist, medically separated for “chronic low back pain” and “left, grade II, hallux limitus,” 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 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 - 20061017	VARD - 20070627	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease 	5243	40%	20070206	
Left, Grade II, Hallux Limitus, First MTP Joint	5299-5281	0%	Degenerative Changes of the Left Great Toe MTP Joint	5299-5284	0%	20070206	
Hypercholesterolemia	Not Unfitting 	High Cholesterol	7199-7114	NSC	20070206	
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 suffered an atraumatic onset of low back pain in February 2006 after being mobilized.  Radiographic studies showed “mild” degenerative disc disease at L4-5 and L5-S1 with minimal neural involvement, but surgery was not recommended.  Provider entries in the STR documented an improving course with conservative measures, but not to an extent allowing resumption of full duty.  There was ample STR documentation of grossly normal range of motion (ROM) with painful motion, and there were no entries that indicated any significant ROM limitation.  There was STR documentation of normal gait and normal spinal contour, with no contrary evidence.  

The 11 August 2006 MEB NARSUM examination, 3 months prior to separation, documented “improvement of pain to 2-3/10 with restrictive activity” and noted that it was continuing to improve, although it increased “markedly” with activity and prohibited running and multiple general soldiering requirements.  The physical examination recorded normal neurological findings without note of tenderness or spasm, and grossly normal ROM with painful motion.  The NARSUM reflected formal ROM measurements for the MEB by physical therapy (PT) from two months earlier (6 June).  These were charted as flexion to 90 degrees (normal) and combined ROM of 210 degrees (normal 240), specifying painful motion.  There was an STR entry on 17 October 2006, 2 weeks before separation, where the CI denied “any new acute injury to back” and documented grossly normal ROM for flexion, extension and bilateral flexion.  

At the 6 February 2007 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported constant lower back pressure with limitation on lifting heavy objects and bending.  The CI had returned to his occupation as a psychologist.  The physical examination recorded a normal gait and spinal contour, tenderness without note of spasm and normal neurological findings.  The documented ROM measurements were flexion of 20 degrees and combined ROM of 125 degrees, specifying pain at end ranges.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing “spasm with full active ROM.”  The VA rated the back condition 40%, coded 5243 (intervertebral disc syndrome), referencing the C&P ROM measurements and citing the applicable VASRD §4.71a spine criterion for flexion of 30 degrees or less.  

The panel first agreed that determinant probative value should be assigned to the service ROM evidence, which was well corroborated by multiple providers, the NARSUM and MEB PT examiner.  The evidence established that there was no injury or exacerbation in service that would have accounted for the severe deterioration of ROM reflected by the C&P measurements.  The markedly disparate C&P ROM measurements were not congruent with the other physical findings (normal gait and contour without note of spasm), or with the overall clinical acuity and pathology.  The PEB’s 10% rating was consistent with the combined ROM noted on the PT examination, and satisfactory evidence of painful motion (VASRD §4.59).  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.  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.  

Left Hallux Limitus.  The CI complained of an atraumatic onset of pain in the left first metatarsophalangeal joint (MPTJ, at the base of the great toe) concurrently with his complaint of back pain after mobilization (as above).  Marked degenerative changes of the MTPJ were present on X-ray.  Podiatry diagnosed hallux limitus (also known as hallux rigidus), prescribed orthotics and opined that surgery was not indicated.  Provider entries in the STR documented localized deformity and significant ROM limitation at the left first MTPJ.  Measured ROM at the MPTJ was 10 degrees of extension (normal 30) and 8 degrees of flexion (normal 80).  Gait was normal as previously noted, and there was no STR documentation of other VASRD-ratable findings or any additional foot diagnosis linked to a specific VASRD code.  

The NARSUM documented pain that had improved to 1-2/10 with orthotics, but “was aggravated with most all high to moderate impact activities.”  The physical examination recorded tenderness and “arthritic prominence” of the MTPJ with “very little flexion or extension.”  

The VA C&P examination documented the continued use of orthotics and non-specific pain at the left MTPJ that prohibited running.  The physical examination recorded only localized MTPJ tenderness and “decreased” ROM due to pain.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the hallux limitus condition 0%, coded 5299-5281 (analogous to hallux rigidus), citing no surgery or equivalence to amputation.  The VA also rated the condition 0%, coded 5299-5284 (analogous to foot injuries, other), based on the C&P examination, citing failure to meet the minimum 10% criterion of “moderate” disability for that code.  Panel members agreed that the PEB’s code 5281 was specific for the condition and that it was difficult to justify an alternate code, even under the provisions of VASRD §4.7 (higher of two evaluations).  The VA’s code 5284 was dubiously applicable even for analogous rating, given the lack of any injury and absence of any foot pathology other than that specified by code 5281.  Furthermore, members agreed that code 5284 was not favorable since the disability in evidence did not satisfy the moderate criterion for a 10% rating.  Members likewise agreed that no other VASRD §4.71a foot code was justified.  

Having agreed that code 5281 was the applicable code, members deliberated whether its maximum 10% rating could be justified in lieu of the PEB’s 0%.  Code 5281 defaults to the rating criteria of code 5280 (hallux valgus), which in turn offers two different criteria for a 10% rating: “operated with resection of metatarsal head” and “severe, if equivalent to amputation of great toe.”  As invoked by the PEB’s rating rationale, there was no surgery in this case and it was quite reasonable to conclude that the disability was not equivalent to an amputation.  The panel noted, however, that code 5281 specifically directs, “Rate as hallux valgus, severe.”  That can easily be interpreted to mean that it refers to the above “severe” 10% criterion whether or not equivalent to amputation.  Given this ambivalence with the rating language and an opinion that the disability was not as negligible as 0%, members agreed that reasonable doubt favored a recommendation for the minimum 10% rating.  After due deliberation, considering all the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the foot condition under code 5281.  

Contended PEB Condition:  Hypercholesterolemia.  This is an asymptomatic laboratory finding with no link to fitness.  It is not subject to VASRD rating and need not be addressed further.  

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 left foot condition, the panel recommends a disability rating of 10%, coded 5281 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	10%	
Left Hallux Limitus	5281	10%	
COMBINED	20%	

PD-2017-05449

XXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXX

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.

				PD-2017-05449