RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200508 SEPARATION DATE: 20040326 BOARD DATE: 20130212 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard (Active Guard Reserve) SSGT/E-6 (88M30/Motor Transport Operator and 92G/Food Service Specialist), medically separated for lumbar degenerative disc disease (DDD), cervical spondylosis with neck pain, right ankle pain, and patellofemoral pain. The CI had a history of low back pain (LBP) from a motor vehicle accident (MVA) in 1996. A line of duty (LOD) investigation in March 2003 determined the lumbar DDD existed prior to service (EPTS) but was aggravated by service due to a fall in December 2001 while on active duty. The CI received a LOD for service aggravation for a fall while on active duty in December 2001. Despite non-steroidal anti-inflammatory drugs (NSAIDS), epidural steroidal injections (ESI), neurosurgery consultations, physical therapy (PT), occupational therapy (OT), and chiropractor evaluations, the CI failed to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U3, L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded lumbar DDD as EPTS with service aggravation; cervical spondylosis, right ankle pain, and patellofemoral pain conditions all as EPTS without service aggravation; and chronic active hepatitis C, mild intermittent asthma, mitral valve prolapse (MVP) with atypical chest pain, gastro esophageal reflux disease (GERD), seasonal allergic rhino conjunctivitis, acromioclavicular (AC) degenerative joint disease (DJD), chronic plantar fasciitis, incidental gallstones, and situational adjustment disorder all as medically acceptable conditions to the Physical Evaluation Board (PEB). The MEB forwarded no other conditions for PEB adjudication. The CI did not agree with the MEB’s findings and submitted a letter attesting his right knee and right ankle conditions had been aggravated by service. The PEB adjudicated the chronic back pain due to lumbar DDD as unfitting and assigned a 10 % rating with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The PEB adjudicated chronic pain of neck, both knees, and right ankle rated as unfitting but EPTS without service aggravation with application of Department of Defense Instruction (DoDI) 1332.39. The remaining conditions were determined to be not unfitting and no rating was assigned. The CI made no appeals and he was then medically separated with a 10% disability rating. CI CONTENTION: “Surgery on right ankle, Right knee, Hep C” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The right ankle, right knee, and hepatitis C requested for consideration and the unfitting CBP due to lumbar DDD meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service FPEB – Dated 20031218 VA (15 Months Pre -Separation) – All Effective Date 20020503 Condition Code Rating Condition Code Rating Exam Chronic Back Pain due to Lumbar DDD 5299- 5237 10% DDD Lumbar Spine 5010- 5292 20% 20030210 Situational Adjustment Disorder Not Unfitting Anxiety Disorder associated with DDD Lumbar Spine 9413 50%** 20040930 Chronic Pain, Neck 5099- 5003 EPTS* Degenerative Changes Cervical Spine 5010- 5290 10%*** 20030210 Chronic Pain, Right Ankle Pain 5099- 5003 EPTS* Joint Derangement, Right Ankle 5271 NSC 20030120 Chronic Pain, Bilateral Knees 5099- 5003 EPTS* Retropatellar Pain Syndrome, Right Knee 5260 NSC 20030120 Osgood-Schlatter Disease, Left Knee 5260 NSC 20030120 Chronic Active Hepatitis C Not Unfitting Hepatitis C 7345 NSC 20030210 Mild Intermittent Asthma Not Unfitting Not Service-Connected (NSC) x 10 others Mitral Valve prolapse Not Unfitting GERD Not Unfitting Rhinoconjunctivitis Not Unfitting Acromioclavicular DJD Not Unfitting Chronic Plantar Fasciitis Not Unfitting Incidental Gallstones Not Unfitting .No Additional MEB/PEB Entries. Combined: 10% Combined: 30%**** *Existed prior to service (EPTS) and not aggravated by service **Rating effective 20020607 **Increased to 20 percent effective 20050602 ****Increased to 60 percent effective 20020607 after Anxiety disorder added at 50 percent and 70 percent effective 20050602 when cervical spine rating increased to 20 percent ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System (DES) fitness determinations and rating decisions for disability at the time of separation. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. Chronic Back Pain due to Lumbar Degenerative Disc Disease. There were three range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Thoracolumbar ROM PT ~16 Mo. Pre-Sep VA C&P ~15 Mo. Pre-Sep MEB ~4 Mo. Pre-Sep Flexion (90° Normal) 20° 45°, no change with repetition Full ROM Ext (0-30) 20° 10°, 20° with repetition R Lat Flex (0-30) Not Reported 15°, no change with repetition L Lat Flex 0-30) 15°, no change with repetition R Rotation (0-30) 45° 20° 20°, 10° with repetition L Rotation (0-30) 45° 20° 20°, 10° with repetition Combined (240°) 125°, 115° with repetition Comment 2/1997 CT scan disc bulging L5-S1 level 1/02 MRI-DDD significant left L3-4 Normal Values used were different (flexion 80° and extension 40°); gait normal; Waddell’s 4/5 Pain limited motion; antalgic gait; normal posture; ROM’s painful motion; mild paravertebral muscle spasms; negative straight leg raise; motor/sensory intact; reflexes normal Myofascial pain with palpation; multiple trigger points in upper back; sensory/motor intact; heel/toe walking intact; Waddell’s +1/5 for hypersensitivity; Referenced Form DD 2808 9 months pre-separation: Lumbar pain with full ROM, Waddell’s 0/5 §4.71a Rating 40% 20% 10% (EPTS but Service Aggravated) The lumbar spine condition was well documented in the service treatment record (STR). An ultrasound performed in August 1996 indicated bilateral nerve root inflammation with mild facet area inflammation also noted at L4. The lumbar spine CT scan demonstrated a mild broad central and left paracentral disc bulging at the L5-S1 level. The magnetic resonance imaging (MRI) demonstrated DDD with most significant changes at L3-4 on the left. A PT exam approximately 16 months prior to separation indicated pain was constant and severe, located in the lower back with paresthesias in the feet, burning in the thighs, and sciatic pain. Physical findings are in the chart above. The VA Compensation & Pension (C&P) examination 15 months prior to separation indicated intermittent sharp throbbing pain; two to three flare-ups per week lasting approximately 3 hours and causing limitation of motion; walking limited to 100 yards; requiring a dressing apparatus to dress and assistance with bathing; and an inability to participate in recreational activities. The physical exam findings from the C&P exam are in the chart above. The MEB narrative summary (NARSUM) examination 4 months prior to separation indicated sleep disturbance, physical limitations of inability to complete an Army Physical Fitness Test (APFT), twenty pounds weight lifting restriction, and intermittent radicular symptoms. The physical findings from the MEB exam are in the chart above. The commander’s statement indicated that the CI’s back injury prevented him from lifting, twisting, stooping, or standing for long periods of time or participating in general physical exercise. The Army initially ruled that the low back injury EPTS, without service aggravation. However, after a LOD investigation appeal, the records were changed to “In LOD-EPTS-Aggravation for DDD.” The following reason was cited for changing the LOD: “The Surgeon General has opined that DD is a process that develops over a person’s lifetime. It does not occur as a result of a single injury, but a single injury may aggravate it. Whether the soldier’s chronic LBP is a permanent aggravation of a pre-existing degenerative disc or a continuation of residuals lumbar strain cannot be determined. Therefore, benefit of any doubt should be given to the soldier.” The Board directs attention to its rating recommendation based on the above evidence. The PEB used the current VASRD spine rules, which were in effect at the time of separation and coded the lumbar DDD condition analogous to 5237 lumbosacral or cervical strain rand assigned a 10% rating (localized tenderness not resulting in abnormal gait or abnormal spinal contour). The VA used the old 2003 spine rules and coded the DDD lumbar spine condition 5010 arthritis, due to trauma, substantiated by X-ray findings with 5292 spine, limitation of motion of, lumbar: moderate rated at 20%. In 2006, the VA updated the rating with the current VASRD code 5010-5237 but did not change the rating. The new spine Rules General Rating Formula for Diseases and Injuries of the spine considers the CI’s pain symptoms “With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.” The most recent MEB NARSUM exam prior to separation, demonstrated an improvement in the CI’s lumbar spine with full ROM, however there was myofascial pain on palpation. The MEB examination completed 5 months prior to separation documented “lumbar pain with full ROM.” Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. While the CI did have evidence of a bilateral radiculopathy, there was no evidence of any functional impairment related to it. Therefore, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic pain due to lumbar DDD condition. Chronic Neck Pain Condition: The PEB determined this condition was unfitting but was also EPTS and not aggravated by service. The VA service-connected this condition based on the LOD investigation discussed above; stating the LOD indicated the CI had injured his neck as well as his back in the fall in December 2001. The STR does substantiate neck pain increased after December 2001 and persisted at least to the time of the MEB NARSUM in November 2003. VA treatment notes document persistent neck pain through June 2010. The CI was issued a permanent U3 profile for neck pain with significant restrictions that can be attributed to this condition including no wearing of a helmet. The commander’s letter does not specifically address neck pain. While the DoDI 6040.44 does not specifically address countering PEB service aggravation determinations, the Board remains adherent to the DoDI 6040.44 “fair and equitable” standard and VASRD §4.22 rating of disabilities aggravated by active service. VASRD §4.22 states, “It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. The resulting difference will be recorded on the rating sheet. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made.” There were three ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Cervical ROM VA C&P ~13 Mo Pre-Sep Med Clinic~8 Mo. Pre-Sep MEB ~4 Mo. Pre-Sep Flex (45° Normal) 20° *25° 30° Good ROM* Ext (0-45) 30° *25° 60° Good ROM* R Lat Flex (0-45) 30° *10° 20° Good ROM* L Lat Flex (0-45) 30° *10° 20° Good ROM* R Rotation (0-80) 60° *10° 60° Good ROM* L Rotation (0-80) 60° *10° 60° Good ROM* COMBINED (340°) 230° /*90° 250° Multiple trigger points paraspinal areas Comment 8/96 6/03 MRI- C5-6 disc protrusion left neural foramen with moderate narrowing; * Pain limited motion; ROM’s painful motion; mild paravertebral muscle spasms; motor/sensory intact; reflexes normal “Pain”; Sensory decreased to pain, temp, vibration in S1 distribution; Spurlings test +; Hoffman’s? *Pain; tenderness §4.71a Rating 2003 VASRD 5290 30% severe limitation of motion 10% or 20% 10% Current VASRD 20% 10% 10% (PEB EPTS, not service aggravated) The CI reenlisted into the National Guard in November 1994. The CI was injured in a MVA in July 1996 and the worker’s compensation claim for cervical strain, thoracic strain, and lumbar strain was accepted by the US Dept. of Labor in October 1996. While on duty working in a kitchen, the CI lifted a 5-gallon pot and slipped to the floor injuring both his neck and lumbar spine. The CI underwent a cervical spine MRI in March 2002 for “episodes of neck and trapezius pains >3-6 months.” The MRI results demonstrated cervical spondylosis at the C5-6 level. The MEB examination 4 months prior to separation indicated that the CI stated that he had chronic constant neck pain since the 1996 accident that caused an inability to wear his helmet or perform any high impact activity. The MEB physical exam findings are in the chart above. The C&P examination 13 months prior to separation indicated intermittent sharp throbbing neck pain with two to three flare-ups per week lasting approximately 3 hours. The physical exam findings from the C&P exam are in the chart above. The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the cervical spondylosis condition analogous to 5003 arthritis, degenerative (hypertrophic or osteoarthritis), however no rating was applied because the condition was adjudged to EPTS without service aggravation. The VA granted service-connection for the neck injury based on their interpretation of the LOD determination and the STR that document the CI injured both his back and his neck in December 2001. The VA used the 2003 spine rules and coded the neck condition 5010 arthritis, due to trauma, substantiated by X-ray findings with 5290 spine, limitation of motion of, cervical: slight rated at 10 percent. While the examination warranted a 30% rating under the old 2003 VASRD spine rules that were in effect at the time, the VA deducted 20%.. The VA stated that prior to his service, the CI’s neck disability was considered 20% based on evidence of cervical spasms. This resulted in a 10% disability rating. The Board’s main charge regarding this condition is evaluation of the PEB’s EPTS without service aggravation determination. The Board’s authority for recommending a change in the aggravation determination is not specified in DoDI 6040.44, and is considered adjunct to its DoD-specified obligation to review disability rating determinations. Both prior service and service disability ratings are determined IAW the VASRD §4.3 (reasonable doubt) standard and the final disability percent rating is determined by deducting the prior service rating from the service rating. The C&P examination used to determine the 30% disability rating was based on an exam completed more than a year prior to separation and the two other examinations noted in the chart above are much closer to the date of separation. Therefore, more probative value is placed on these service examinations. The current spine rules were in effect at the time of separation and those rating criteria will be used to determine the disability rating. The prior disability rating determined by the VA will be deducted to determine the final disability rating. The examinations support a disability rating of 10% and with a deduction of 20%, the final rating would be 0%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the cervical spondylosis condition. Chronic Knee Pain Condition. The PEB determined this condition was unfitting but also EPTS, without service aggravation. This was based on a history of bilateral knee pain consistent with patellofemoral syndrome (PFS) that had been present since 1978. The VA determined no service connection for either right or left knee pain. Although the C&P examination in January 2003 noted retropatellar pain syndrome of the right knee and Osgood-Schlatter’s disease of the left knee, the VA determined that neither knee condition was service-connected because no available evidence demonstrated that either knee condition began in or was aggravated by military service. An Informal LOD investigation was completed after a left knee injury in June 2003 and it determined the injury occurred in the LOD. No treatment notes related to this injury are available for review. There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Knee ROM VA C&P ~14 Mo. Pre-Sep MEB ~9 Mo. Pre-Sep Left Right Left Right Flexion (140° Normal) 140° 140° No ROM’s Extension (0° Normal) No ROM Comment 6/02 Right knee nml “Locking”; painful motion; guarding; mild antalgic gait; left leg 36 ¼ inches long; right leg 36 3/8 inches long; crepitus Knee brace on right; facet pain; good stability §4.71a Rating 10% (VA NSC) 10% (PEB EPTS, not service aggravated) The C&P examination 14 months prior to separation noted complaints of locking in both knees daily pain lasting for 6 to 7 hours and pain aggravated by cold. The physical exam findings from the C&P exam are in the chart above. The MEB NARSUM examination 9 months prior to separation indicated that the CI had bilateral knee pain consistent with PFS since 1978 with symptoms occurring 80% of the time causing sleep disturbance, requiring braces and preventing alternative APFT testing. The MEB physical exam findings are in the chart above. The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the patellofemoral pain condition 5099 analogous to 5003 arthritis, degenerative (hypertrophic or osteoarthritis), however no rating was applied because the condition was adjudged to be EPTS and not service aggravated. The VA determined neither knee condition was service-connected. The Board’s main charge regarding this condition is evaluation of the PEB’s EPTS without service aggravation determination. The Board’s authority for recommending a change in the service aggravation determination is not specified in DoDI 6040.44, and is considered adjunct to its DoD-specified obligation to review disability rating determinations. While the DoDI 6040.44 does not specifically address countering PEB service aggravation determinations, the Board remains adherent to the DoDI 6040.44 “fair and equitable” standard and VASRD §4.22 rating of disabilities aggravated by active service. Both prior service and service disability ratings are determined IAW the VASRD §4.3 (reasonable doubt) standard and the final disability percent rating is determined by deducting the prior service rating from the service rating. The Board evaluated the evidence for any indications that the condition, although not service-incurred, was service aggravated. However, there was no foundation for a convincing argument to that effect. The MEB NARSUM stated that the condition existed since 1978; the CI did not require PT for rehabilitation. Although there was a LOD injury of the left knee in June 2003, this injury did not cause aggravation to the existing condition. The C&P examination completed prior to the June 2003 injury and the MEB NARSUM examination completed after the June 2003 injury both document the same level of functional impairment. Therefore, a finding of service aggravation based on the June 2003 injury is not warranted. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knee condition. Chronic Right Ankle Pain Condition. The PEB determined this condition was unfitting but was also EPTS and without service aggravation. This was based on the history of right ankle pain after an injury that occurred in April 2001, prior to service. This injury resulted in a right deltoid ligament repair in August 2002. The VA did not service-connect right ankle pain stating there was no evidence of any relationship between the CI’s right ankle condition and any disease or injury incurred during military service. There is no evidence in the record available for review of any other injury or event affecting this condition occurred in the line of duty. The Board’s main charge regarding this condition is evaluation of the PEB’s EPTS without service aggravation determination. The Board’s authority for recommending a change in the service aggravation determination is not specified in DoDI 6040.44, and is considered adjunct to its DoD-specified obligation to review the disability rating determination. While the DoDI 6040.44 does not specifically address countering PEB service aggravation determinations, the Board remains adherent to the DoDI 6040.44 “fair and equitable” standard and VASRD §4.22 rating of disabilities aggravated by active service. Both prior service and service disability ratings are determined IAW the VASRD §4.3 (reasonable doubt) standard and the final disability percent rating is determined by deducting the prior service rating from the service rating. The Board evaluated the evidence for any indications that this condition, although not service incurred, was service aggravated. The available evidence shows the condition existed prior to call up in April 2001 and there is no evidence that any further injury occurred in the LOD. Therefore, there is no foundation for a convincing argument to support service aggravation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic pain, right ankle condition. Contended PEB Conditions. The contended condition adjudicated as not unfitting by the PEB was hepatitis C. The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. This condition was not profiled, it was not implicated in the commander’s statement, and it was not judged to fail retention standards. This condition was reviewed by the action officer and considered by the Board. There was no indication from the record that this condition significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the hepatitis C and, therefore, no additional disability rating can be recommended. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on DoDI 1332.39 was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the chronic back pain due to lumbar DDD condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic neck pain condition, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic knee pain condition, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic right ankle pain condition, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended hepatitis C condition, the Board unanimously recommends no change from the PEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Chronic Back Pain due to Lumbar Degenerative Disc Disease EPTS 5299-5237 10% Chronic Neck Pain EPTS 5099-5003 EPTS, Not Service Aggravated Chronic Knee Pain EPTS 5099-5003 EPTS, Not Service Aggravated Chronic Right Ankle Pain EPTS 5099-5003 EPTS, Not Service Aggravated COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120606, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx) 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxx, AR20130005550 (PD201200508) I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)