RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200946 SEPARATION DATE: 20031108 BOARD DATE: 20130220 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (95C/RA Corrections Specialist), medically separated for status post (s/p) L5/S1 discectomy (low back pain), bilateral retropatellar pain syndrome and headaches frequent tension headaches and migraine headaches condition. The CI did not improve adequately with surgical and post rehabilitative treatment for the low back condition or conservative treatment for the remaining conditions to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3U2L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the low back, bilateral knee and headaches conditions as unfitting, rated 10%, 0% and 0%, respectively, with application of Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% combined disability rating. CI CONTENTION: “I was rated for 0% for migraines that completely disable me from any work or activity. I was rated at 10% for degenerative arthritis, lumbar spine, which is extremely painful and debilitating, greatly [sic] effecting every part of my life. My back is a lot more than 10% of my body and my life. I originally received 0% for my right and 0% for my left knees. With these combinations I strain to move and at times do anything at all. I struggle to work not only with these conditions but others that have come along the way. I cannot sleep properly with my back and I believe that I had incurred Sleep Apnea which does cause the migraines previously stated. I use a bi-pap that the VA has provided but has been denied in a compensation and pension review. I have bursitis in my right knee and a baker’s cyst in my left knee along with the constant popping, locking and giving out of both knees. I have further complications to these conditions now but when I was discharged in 2003 with these conditions I cannot believe that my head, my back and both knees were only worth 10%. I am currently rated at 60% and am in the progress of another compensation and pension review for an increase. I have included copy of letters sent for the last review and a copy of my current rating letter for your consideration.” sic The CI attached a 2-page statement pleading to his application along with additional letters of support which were reviewed by the Board and considered in its recommendations. 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 unfitting S/P L5-S1 discectomy, bilateral retropatellar pain syndrome and headaches, frequent tension and migraine, conditions meet the criteria prescribed in DoDI 6040.44 for Board purview, and below, are accordingly addressed. The sleep apnea, and hip, buttock and tailbone pain requested conditions are not within the Board’s purview. 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 IPEB – Dated 20030710 VA (4 Mos. Post-Separation) – All Effective Date 20031109 Condition Code Rating Condition Code Rating Exam S/P L5-S1 Discectomy 5293 5299 5295 10% S/P L5-S1 Discectomy 5243 10%* Failed to Report* Bilateral Retropatellar Pain Syndrome 5099 5003 0% Retropatellar Pain Syndrome, Right Knee 5260 0%* Failed to Report * Retropatellar Pain Syndrome, Left Knee 5299-5260 0%* Failed to Report * Headaches, Frequent Tension Headaches and Migraine 8100 0% Migraine Headaches 8100 0%* Failed to Report * .No Additional MEB/PEB Entries. Surgical Scar 7805 0% Failed to Report * Not Service-Connected x 2 Combined: 10% Combined: 10%* *Ratings increased based on C&P exam dated 20110107 for a combined 60% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board also acknowledges the CI's contention suggesting that ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected). While the Disability Evaluation System considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The Department of Veterans Affairs, however, is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. Low Back Condition. The CI had a fall, slipping on a wet gym floor, and sought treatment for acute low back pain (LBP) with radiation into the left lower extremity. After not responding adequately to rest, physical therapy, chiropractic care, non-steroidal, anti-inflammatory and muscle relaxant medications he opted for surgery for a magnetic resonance imaging (MRI) confirmed large left-sided disc herniation (HNP) at L5-S1 with nerve root impingement. Neurosurgery documented physical exam signs consistent with an S1 radiculopathy without myelopathy, evidenced by a decreased ankle jerk on the left, and performed a L5-S1 discectomy in order to attempt to relive the radicular pain as well as possibly improve the LBP. At follow- up with neurosurgery the CI reported the LBP had significantly improved with occasional tingling in the posterior aspects both legs. However, he had aggravation of pain with running, walking and bending which necessitated a permanent profile and referral for a MEB. The permanent profile documented the following limitations; no lifting above 30 lbs, unable to wear the 40lb backpack, alternate physical training test with the walk and push-ups, run at own pace and distance, march up to 5 miles, able to wear a pistol belt and the stab proof vest required for work in the USDB. The commander’s statement identified his back and bilateral knee conditions, corroborated his profile limitations and additionally documented the lifting and ruck marching limitations precluded him from performing in his MOS. The MEB physical exam, 6 months prior to separation, demonstrated full active range-of- motion (ROM), normal neuromuscular findings of the lower extremities with negative straight leg raise (SLR) (provocative test for disc disease) and a midline surgical scar 4.5 cm (1.77 inches) in length in the low back consistent with history of lumbar diskectomy. A physical therapy (PT) examination, 17 months prior to separation, also demonstrated full active ROM; however, there was pain with motion. X-rays of the low back were consistent with history of lumbar discectomy and degenerative joint disease (DDD) of the L5-S1 level. There is no probative VA evidence in this case to consider, since the CI failed to present for the post separation scheduled VA evaluation in 2004. The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA chose different coding options for the condition, but this did not bear on rating. The PEB based their rating recommendations IAW 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation, were modified on 23 September 2002 to add incapacitating episodes (5293, Intervertebral disc syndrome), and then changed to the current §4.71a rating standards on September 2003. The 2002 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. For the reader’s convenience, the 2002 rating codes under discussion in this case are excerpted below. 5292 Spine, limitation of motion of, lumbar: Severe ………………………………………………………..……….………….... 40 Moderate …………………………………….……………….…….…………...…. 20 Slight ………………………………………………………..…………………...….10 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with: sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief ………………..….……….….. 60 Severe; recurring attacks, with intermittent relief ……………..…….………..….…40 Moderate; recurring attacks ……………………………….……………............…...20 Mild ……………………………………………………………..…………….….…10 Postoperative, cured …………………………………….………..……………....…..0 5295 Lumbosacral strain: Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion …………………..…... 40 With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing' position ……………...…….……..…...….….. 20 With characteristic pain on motion ………………………………..……...…….…. 10 With slight subjective symptoms only ……………………...…….…………...……. 0 Both the MEB and the VA rated the CI’s lumbar spine condition at 10%. It is reiterated that the VA rating was based on the evidence. The 20% rating for 5295 is fairly specifically defined as noted above. The CI’s condition clearly does not meet the criteria for a rating higher than 0% under the 5295 code based on the MEB exam with absence of painful motion but does meet the 10% criteria with the PT exam 17 months prior to separation. The Board's recommendation may not produce a lower rating than that of the PEB. The Board also considered a rating under the 5292 code for limitation of spine motion. Neither the MEB nor the PT ROM’s documented would justify a “slight” 10% rating under that code. There is no evidence of documentation of incapacitating episodes to meet criteria under the 5293 code or ratable peripheral nerve impairment which would provide for additional or higher rating. The Board also notes the VA chose to assign a 10% rating code 5243 (Intervertebral disc syndrome) under the general rating formula for diseases and injuries of the spine rather than the formula for rating intervertebral disc syndrome based on incapacitating episodes which is an option with this code. 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 low back pain condition. Bilateral knee condition. While undergoing the MEB exam for the low back condition, the CI also reported atraumatic bilateral knee pain for the last 3 years, right worse than left, aggravated with ascending and descending stairways and particularly with running. The pain was consistent with retropatellar pain syndrome bilaterally. Prior to the MEB exam, the service treatment record (STR) reflected only two encounters in the year 2000 and one in 2003 when the CI sought care for the bilateral knee pain condition. The MEB physical exam demonstrated bilaterally; full active ROM, normal ligament and meniscal provocative exam findings, neurovascularly intact lower extremities, and pain with patellar grind. A physical therapy exam, 9 months prior to separation, also demonstrated full active ROM. X-rays of the bilateral knees were normal. The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA chose different coding options for the condition, but this did not bear on rating. Both the PEB and the VA rated the CI’s bilateral knee condition at 0%. It is reiterated that the VA rating was based on the evidence. The Board agreed there is no X-ray evidence to support a 10% rating or evidence of incapacitating episodes to support a 20% rating under the 5003 code. There is no viable approach to a higher rating for the right knee which was countenanced by the VASRD with normal ligament and meniscal findings. 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. Headache Condition. In the STR, the CI was evaluated by neurology in 2002 for increasing frequency of headaches and was diagnosed with both tension headaches and migraine headaches. The CI reported at this time, a year prior to separation, he had 1-2 migraine headaches a month with the typical associated symptoms characteristic of migraines and tension headaches 1-2 times per week. Medications treatment included non steroidal, Midrin, Percocet and Imitrex, which was stopped due to side effects. There was no evidence of prostrating headaches that required the CI to stop work. This condition was not profiled, not mentioned in the commanders statement and furthermore was not evaluated in the MEB exam nor was there evidence of any further treatment after the neurology evaluation in 2002. The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA applied different VASRD codes, but were subject to the same rating criteria IAW §4.124a—Schedule of ratings–neurological conditions and convulsive disorders. Both the MEB and the VA rated the CI’s migraine headache condition at 0%. It is reiterated that the VA rating was based on the evidence. The VA rating decision cites the noncompensable evaluation is assigned due to the lack of evidence of characteristic prostrating attacks averaging one in 2 months over the last several months for the higher rating. 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 headache condition. 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the low back and bilateral knee condition and IAW VASRD §4.71a the Board unanimously recommends no change in the PEB adjudication. In the matter of the headache condition and IAW VASRD §4.124a the Board unanimously recommends no change in the PEB adjudication. 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 Status Post L5/S1 Discectomy 5293-5299-5295 10% Bilateral Retropatellar Pain Syndrome 5099-5003 0% Headaches 8100 0% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120722, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxx, AR20130004604 (PD201200946) 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 xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)