RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD121648 SEPARATION DATE: 20020607 BOARD DATE: 20130308 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (52C/Utility Equipment), medically separated for a degenerative disk disease (DDD) of the thoracic spine. Treatment and therapy was attempted after initial onset of conditions in 1997, but the CI could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards. He was consequently issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB made six diagnoses and sent the case to the Physical Evaluation Board (PEB). The PEB adjudicated “Degenerative disc disease…T7-8…” as unfitting and rated 10%. The CI made no appeals and was medically separated with a 10% disability rating. CI CONTENTION: The application states “Depression, degenerative disk disease, total rating 100%.” The application does not elaborate or specify a request for Board consideration of any additional conditions. SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (DoDI) 6040.44 (Enclosure 3, paragraph 5.e.2) is limited to those conditions 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 listed not unfitting conditions, as requested for consideration, meet the criteria prescribed in DoDI 6040.44 for Board purview and are addressed below, in addition to a review of the ratings for the unfitting DDD. The requested condition of depression was not identified by the PEB and is therefore not within the purview of the Board. 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 PEB – Dated 20020416 VA (2 Mo. Pre-Separation) – Effective 20020608 Condition Code Rating Condition Code Rating Exam Degenerative Disc Disease T7-8, with Herniation w/ Radicular Type Pain…alternately Dx’d as Costochondritis 5299-5293 10% Degenerative Disc Disease with Diffuse Disc Bulge 5293 20% 20020408 Patellofemoral Arthrosis, Right Knee Not Unfitting Right Knee Patellofemoral Arthrosis 5260 10% 20020408 Chronic Ankle Instability, Right Not Unfitting Right Ankle Peroneal Tendinitis 5271 10% 20020408 Grade I AC Separation, Right Not Unfitting Residuals, Right AC Separation 5203 10% 20020408 .No Additional MEB/PEB Entries. Adjustment Disorder with Depression and Anger 9440 30% 20040418 0% X 3 / Not Service Connected x 3 20020408 Combined: 10% Combined: 60% ANALYSIS SUMMARY: Degenerative Disc Disease (DDD) Condition. The narrative summary (NARSUM) dictated 3 months prior to separation notes a history of mid back pain since 1997. There was no history of trauma. The CI reported mid back pain radiating to the ribs and right flank. The pain was described as a constant ache with numbness and tingling in the right flank. The pain was rated at 5-6/10, but increased to 10/10 with strenuous activity. A magnetic resonance imaging (MRI) study in March 2001 revealed mild DDD at T7-8 with mild diffuse disc bulge without evidence of spinal stenosis or herniated disc. Physical medicine and neurosurgical consultants determined that the CI’s pain level did not reach the threshold for surgical intervention. The CI was treated with pain medications, anesthetic injections, and physical therapy with transient relief of his mid-back pain with T7 radiculopathy pain. The NARSUM examination demonstrated hypersensitivity along the T6-T8 distribution, pain to palpation of the right paraspinal muscles, and decreased sensation of the T6-T8 area on the right. The 7th and 8th ribs were tender to palpation at the costal margins. At the VA Compensation and Pension (C&P) exam 2 months prior to separation the CI reported pain with bending. The pain was described as worse at night and disturbed his sleep. The physical examination was significant for tenderness from the third rib to the end of his rib cage on the right. His back was not tender to palpation and his ROM was normal. There were no gait abnormalities noted. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Thoracolumbar ROM (In degrees) PhysMed ~6 Mo. Pre-Sep NARSUM ~3 Mo. Pre-Sep VA C&P ~2 Mo. Pre-Sep Flexion (90 Normal) ? 80 90 Ext (0-30) 10 10 # R Lat Flex (0-30) 20 - WNL L Lat Flex 0-30) 20 - WNL R Rotation (0-30) 20 15 WNL L Rotation (0-30) 20 15 WNL Comment Forward flexion fingertips to patella Pain limitation of motion Hypersensitivity to pain right greater than left Back is nontender, gait is normal §4.71a Rating 10% 10% 0% (VA-20%) The Board directs attention to its rating recommendation based on the above evidence. Both the VA and the PEB applied the 5293 code (intervertebral disc syndrome) for thoracic DDD. The PEB determined the condition was “mild”, thus warranting a 10% rating, while the VA deemed the condition “moderate with recurring attacks” in support of a 20% rating. The Board considered that multiple notes in the service treatment record (STR) documented treatment for mid-back and rib pain, with right rib cage pain hypersensitivity, numbness, and tingling. The neurosurgical and physical medicine consultants considered the CI’s symptom severity level as moderate, but not reaching the threshold for surgical intervention. However, the VA examination most proximate to separation documented no objective pain findings of the back, a normal gait and normal ROM. Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board consensus was that a disability rating of 10% most accurately depicted the clinical condition under the 5293 code in this case. Board members agreed that a higher rating was not possible under the other applicable code (5291; spine, limitation of motion, dorsal). 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 degenerative disc disease condition. Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were right knee patellofemoral arthrosis, chronic right ankle instability and Grade 1 right acromioclavicular separation. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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. None of these conditions were permanently profiled; none were implicated in the commander’s statement; and, none were judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no indication from the record that any of these conditions 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 any of the contended conditions; and, therefore, no additional disability ratings 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. 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 thoracic DDD condition and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends no change in the PEB adjudication. The single voter for dissent (who recommended a 20% rating) did not elect to submit a minority opinion. In the matter of the contended right patellofemoral arthrosis, chronic right ankle instability, and Grade 1 right acromioclavicular separation conditions, the Board unanimously recommends no change from the PEB determinations 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 Thoracic Degenerative Disc Disease 5299-5293 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120918, w/atchs. Exhibit B. Service Treatment Record. Exhibit C. Department of Veterans Affairs Treatment Record. xxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxx, AR20130006852 (PD201201648) 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 xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)