RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD1201622
BRANCH OF SERVICE:  Army	BOARD DATE:  20130709
SEPARATION DATE:  20060916

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army National Guard SGT/E-5 (21B2P/Combat Engineer) on a temporary tour of active duty, who was medically separated for chronic low back pain (LBP), chronic neck pain and chronic bilateral foot pain conditions.  The CI‘s LBP and bilateral foot pain began while deployed to Iraq in 2003.  Treatment was delayed, which aggravated these conditions due to high operations tempo of his unit.  Upon redeployment, he was diagnosed with pes planus and fitted with orthotics.  He again deployed in 2005 and developed neck pain.  Once again treatment was delayed and the back and bilateral foot condition were aggravated during the second deployment.  After redeployment, physical therapy (PT) was provided.  The CI’s conditions could not be adequately rehabilitated with conservative treatment to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3/U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The low back, neck and bilateral foot pain conditions, characterized as “degenerative disk disease (DDD) of the lumbar spine, cervicalgia, symptomatic pes planus and Stage 1 posterior tibial tendon dysfunction,” and moderate to severe obstructive sleep apnea (OSA) conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  An Axis I diagnosis of depressive disorder, characterized as meets retention standards was also forwarded.  The PEB adjudicated “chronic radiating LBP, chronic neck pain and chronic bilateral foot pain conditions” as unfitting.  The low back and neck conditions were each rated 0% and the foot condition while unfitting was determined to have existed prior to service (EPTS) without permanent service aggravation (PSA) and was not rated.  The OSA and depressive disorder conditions were both considered by the PEB and determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back, neck and bilateral foot pain conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined 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 Board for Correction of Military Records (BCMR).

RATING COMPARISON:

Service  IPEB – Dated 20060916	VA - (5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	0%	Lumbar Strain	5237	0%*	20070130	
Neck pain	5299-5237	0%	Cervical Strain 	5237	0%**	20070130	
Bilateral Foot Pain	5299-5276	---%	Bilateral Pes Planus	5299-5284	10%	20070130	
Moderate to Severe OSA	Not Unfitting	Sleep Apnea	6847	50%	20070130	
Depressive Disorder	Not Unfitting	PTSD	9411	30%	20070130	
No Additional MEB/PEB Entries	Other x 3	20070130	
Combined:  0%	Combined:  70%	
*Increased to 20% effective 20070430 based on C&P exam 20070705
**Increased to 30% effective 20070516 based on STR and C&P 20070705

ANALYSIS SUMMARY:  The Board uses VA evidence proximal to separation in arriving at its recommendations.  DoDI 6040.44 prescribes a 12-month interval for special consideration of post-separation evidence.  The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Low Back Pain Condition.  The narrative summary (NARSUM) dated 7 June 2006 notes the CI began to have atraumatic LBP during his first Operation Iraqi Freedom tour in 2003.  This was further aggravated with his second tour to Iraq in 2005.  Between tours he was treated conservatively and received a retention physical exam in November 2004 which documented no active profiles and a stable LBP condition.  His body habitus at the time of this physical was 5 foot 7 inches and a weight of 233 pounds.  At the time of the NARSUM he reported chronic, constant dull ache with a sharp, stabbing, shooting pain at the central lower lumbar spinal region and on the left side of the middle of his back, with an intensity of 8-9 of 10 on a pain scale.  It was aggravated with running, jumping or impact activity, repetitive bending, the wearing of body armor or rucksack, sitting for greater than 20 minutes without a chance to stand or stretch, sit-ups, flutter kicks, lifting of greater than 40 pounds and riding in tactical vehicles.  It was alleviated with rest, medications, ice application or the elevation of his lower extremities.  He reported taking the narcotic based medication Oxycodone as necessary, averaging 6-8 pills per week.  The LBP had worsened since its onset and there was no indication for surgery.  The physical profile identified the low back and corroborated the above limitations.  The NARSUM cited a physical exam on 27 March 2006, which was not in evidence for review.  This exam documented no tenderness to palpation (TTP) throughout the spinous or paraspinal region, with no step off, deviations and no spasm noted in the paravertebral musculature as well as negative Waddell signs.  The CI had full active range-of-motion (ROM) throughout the thoracolumbar vertebrae.  There was a positive left straight leg raise (SLR) to 80 degrees (provocative testing for disc disease), negative right SLR, decreased sensation to light touch in the left lower extremity and otherwise the remainder of the neurologic signs with respect to reflexes and motor strength of the lower extremities were bilaterally normal.  He was able to heel and toe-walk but had great difficulty doing so with his left foot.  Lumbar spine X-rays revealed sacralization of L5/4 lumbar vertebra and minimal loss of height of T11.  Magnetic resonance imaging (MRI) of the lumbar spine revealed probable exiting left L5 neural compromise and possible left transiting S1 neural compromise at the L5-S1 disk level.  Electromyogram of the left lower extremity was preformed after this study and was normal.  The CI was then seen by neurosurgery and was diagnosed with DDD of the lumbar spine.  The service treatment record (STR) documented extensively that the CI recreationally participated in powerlifting, up to 350 pounds, despite his condition.  He continued this hobby despite medical advice not to on multiple occasions in view of his back condition.

At the VA Compensation and Pension (C&P) exam performed 5 months after separation, the CI reported stiffness in the morning, some weakness; and, that treatment was bed rest, narcotic medications (both Methadone and Oxycodone), injections, heat and ice.  He did not report incapacitations.  The C&P exam additionally documented normal curvature of the spine, no evidence of radiating pain on movement, negative bilateral SLR, and no Deluca observations.  X-ray findings of the lumbar spine were within normal limits.  The examiner diagnosed DDD of the lumbar spine.

The 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
(Degrees)	MEB ~ 3 Mo. Pre-Sep	VA C&P ~ 5 Mo. Post-Sep	
VA C&P ~ 12 Mo. Post-Sep	
Flexion (90 Normal)	Full 	90 pain occurs	80	
Extension (30)	Full	30 pain occurs	10	
R Lat Flexion (30)	Full	30	20	
L Lat Flexion (30)	Full	30	20	
R Rotation (30)	Full	30	20	
L Rotation (30)	Full	30	20	
Combined (240)	Full	240	170	
Comment	Silent to painful motion	Without radiating pain	Painful motion,
+Deluca by 10 degrees	
§4.71a Rating	0%	0% vs.10%*	10%	
*IAW 4.59 painful motion

The Board directs attention to its rating recommendation based on the above evidence, including consideration of Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.40 (functional loss), §4.45 (DeLuca criteria), and §4.59 (painful motion).  The PEB and VA chose the same coding option for the condition and both assigned a non-compensable rating of 0% IAW §4.71a—schedule of ratings–musculoskeletal system, based on full ROM and the absence of radiating pain.  The Board deliberated whether a 10% rating IAW VASRD §4.59 was warranted since the VA examiner documented that pain occurred at 90 degrees.  The Board concluded based on totality of the evidence, to include the absence of documentation of painful motion on the MEB exam prior to separation, the CI’s ability to powerlift up to 350 pounds and his continued persistence in powerlifting despite medical advice to the contrary, that the LBP condition did not rise to the level of criteria for a 10% rating.  The Board considered rating under diagnostic code 5243 (intervertebral disc syndrome) and agreed the evidence does not support this in the absence of incapacitating episodes.  There was no evidence of ratable peripheral nerve impairment which would provide for additional or 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 LBP condition.

Neck Pain Condition.  The NARSUM documented the CI developed atraumatic chronic posterior cervical spine pain and associated headaches while on extended combat operations.  At the MEB exam, the CI reported chronic, constant, dull and achy pain at the posterior aspect, lower half of his cervical spine rated at a 5-7 of 10 in intensity on a pain scale.  The pain was aggravated by the wearing of a Kevlar helmet, body armor, rucksack, sit-ups and shrugs or overhead weightlifting maneuvers.  It was alleviated with rest, popping of his neck with side to side movement or ice application.  There was no mention of a surgical option for treatment.  The profile identified the condition and corroborated his reported limitations.  The MEB physical exam demonstrated full active ROM, no TTP of either of the spinous processes, no step-offs or deviations and no edema, erythema, or ecchymosis.  MRI of the cervical spine was essentially a normal study, with slight straining of the alignment suggesting spasm.  The examiner diagnosed cervicalgia (neck pain).  At the C&P exam performed 5 months after separation, the CI reported incapacitating episodes as often as 2 times per year, which lasted for 3 days.  His pain was alleviated with bed rest and the above mentioned narcotic medications.  The C&P exam additionally documented a normal posture and gait, and no radiating pain on movement or muscle spasm.  X-ray findings of the cervical spine were within normal limits.  The examiner diagnosed cervicalgia (pain in the neck).

The 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.

Cervical ROM
(Degrees)	MEB ~ 3 Mo. Pre-Sep	VA C&P ~ 5 Mo. Post-Sep	VA C&P ~ 12 Mo. Post-Sep	
Flex (45 Normal)	Full 	45 pain occurs	15	
Extension (45)	Full	45 pain occurs	10	
R Lat Flexion (45)	Full	45	20	
L Lat Flexion (45)	Full	45	20	
R Rotation (80)	Full	80	60	
L Rotation (80)	Full	80	60	
Combined (340)	Full	340	185	
Comment		Without radiating pain	Painful motion	
§4.71a Rating	0%	0% vs. 10%*	30%	
*IAW 4.59 painful motion

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA chose the same coding option for the condition and both assigned a non-compensable rating of 0% IAW §4.71a (schedule of ratings–musculoskeletal system), based on normal ROM and absence of radiating pain.  The Board agreed the totality of the evidence for this condition at the time of separation did not meet the criteria for a 10% rating IAW VASRD §4.59.  As before, the Board noted the CI engaged in his powerlifting hobby despite his condition and medical advice on multiple occasions not to, lifting up to 350 pounds.  And while the VA exam occurred about 12 months after separation, the Board did not consider it probative as it likely reflects worsening of the disease in the absence of trauma or surgery.  There was also no evidence of ratable peripheral nerve impairment or DDD which would provide for additional or 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 neck pain condition.

Bilateral Foot Pain Condition.  At the CI’s enlistment physical in 1996, the examiner documented mild bilateral asymptomatic pes planus.  At the time of his retention physical exam in 2004 the examiner documented mildly symptomatic pes planus and the CI’s use of orthotics.  The MEB NARSUM documented the CI developed worsening bilateral foot pain during his first tour in Iraq in 2003: he began to notice his feet going numb while standing still.  He was evaluated and again diagnosed with pes planus and fitted with orthotics.  He then deployed a second time to Iraq and the condition worsened more despite the orthotics.  At the MEB exam, the CI reported chronic, constant, dull and achy to sharp burning pain at the arches of both feet as well as at the point of insertion of the left Achilles tendon.  He reported this to be a 7-8 of 10 in intensity on a pain scale.  It was aggravated by running, jumping, or impact activity, standing for greater than 3 to 5 minutes without a chance to reposition or stretch, lifting greater than 40 pounds, and the prolonged wearing of body armor or a rucksack, as well as going up or down stairs and squatting.  It was alleviated with rest and ice application.  There was no mention of surgery as a treatment option for this condition.  The profile identified the condition and corroborated his reported limitations.  The NARSUM cited the podiatry exam completed on 3 May 2006.  It documented slightly diminished sensation on the left, normal on the right, instability in heel rise and difficulty with resupination, but 5 of 5 in muscle strength testing with plantar flexion, dorsiflexion and eversion.  Weight bearing X-rays revealed bilateral pes planus.  The podiatry examiner diagnosed symptomatic pes planus and Stage 1 posterior tibial tendon dysfunction.  At the C&P exam, the CI reported bilateral foot pain that traveled to the legs, knees and hips.  He had stiffness of the feet after rest and swelling and fatigue.  He reported that he did not receive any treatment for his foot condition.  The C&P exam demonstrated tenderness of both feet, a slight degree of angle deformity present on the feet which was corrected by manipulation, good alignment of the Achilles tendon bilaterally and no forefoot, or midfoot malalignments.  The examiner diagnosed symptomatic pes planus.

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 Board agreed the PEB’s chosen code 5276 (pes planus) captures the clinical pathology and is appropriate for a bilateral criteria, unlike the VA’s chosen code 5284 (foot injury, other) which is for a single foot.  The PEB adjudicated the condition as EPTS but without PSA.  The Board’s pivotal discussion focused on whether there was permanent aggravation.  The Board noted the CI’s cumulative active duty time does not meet the 8-year requirement that the condition be automatically considered PSA.  The Board however did review the entire STR for clinical evidence of permanent aggravation.  The CI sought treatment for symptomatic pes planus after both deployments which was a change from his entrance exam but he was retained for duty in between deployments with the use of orthotics, and he reported at the time of the VA exam that he was not actively seeking treatment for his feet.  Therefore the Board agreed the evidence does not support a conclusion of permanent aggravation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determined there was insufficient cause to recommend a change in the PEB adjudication for the bilateral pes planus 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral foot pain condition and IAW VASRD §4.71a, 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 recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain	5299-5237	0%	
Neck pain	5299-5237	0%	
Bilateral Foot Pain	5299-5276	EPTS	
COMBINED	0%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120831, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXX, AR20140001864 (PD201201622)

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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)