RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01577
BRANCH OF SERVICE:  Army	BOARD DATE:  20141223
SEPARATION DATE:  20040615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Heavy Wheeled Vehicle Mechanic) medically separated for a right foot condition and low back pain (LBP).  The right foot and back conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right foot and back conditions, characterized by the MEB as “continued pain status post (s/p) excision of nonunion fragment right 5th metatarsal” and “low back pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition.  The Informal PEB (IPEB) adjudicated “persistent pain right foot following excision of avulsed fragment of base of 5th metatarsal” as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The IPEB adjudicated the “low back pain with disruption of the pars interarticularis at both L4 & L5 with grade I spondylolisthesis” as unfitting, but determined it to be a developmental abnormality which existed prior to service (EPTS), not permanently service aggravated; therefore, not compensable; with application of DODI 1332-38.  The remaining condition was determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I would like a review of my DOD claim.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20040426	VA* - (Exam conducted on Date of Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Foot Pain	5099-5003	0%	S/P Excision of Avulsed Bony Fragment, Right 5th Metatarsal	5284	10%	20040615	
Low Back Pain	5239	EPTS/Not PSA	Degenerative Changes Lumbar Spine	5242	0%	20040615	
Migraine	Not Unfitting	Vascular Headaches	8100	0%	20040615	
Other x 0	Other x 3	
Rating:  0%	Combined:  10%	
*Derived from VA Rating Decision (VARD) dated 20040712 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Right Foot Pain.  The CI suffered an inversion injury to his right foot in May 2002.  Initial plain film X-rays were normal and he was treated with rest, ice, compression and elevation.  He continued to experience right foot pain and tenderness especially with increased walking/running and when he bumped to outside of the right foot.  Repeat plain film X-rays 7 months later revealed an abnormality at the base of his 5th metatarsal (MT).  A bone scan showed intense uptake in that area and a CT scan confirmed a non-union at the base of the 5th MT.  In July 2003, the CI underwent surgical resection of the non-united boney fragment at the base of the 5th MT.  At his 6-month post-surgical follow-up, the podiatrist made the following annotation:

States overall improvement post-op (from 7 /10 pain to 2/10 pain), out is still unable to run, wear boots, drive a forklift, or drive car >1 hour w/o pain.  Is getting pressure from unit NCO's to get MEB.  States that he is unable to perform physical requirements of his MOS at this time.  Desires MEB, "so I can move on w/ my life and find a job that I can do.”  Inserts in boots increases pain and is not able to wear boots for this reason.”

The narrative summary (NARSUM) prepared 3 months prior to separation noted that the CI was held back from deployment and placed in a rear detachment so he could have the condition treated.  He stated that his preoperative pain level was about an 8/10 and post-operative pain was 2/10 at that time.  He noted decreased pain since “my unit finally letting me rest to allow it to heal.”  The physical exam noted tenderness to palpation (TTP) at the base of the 5th MT with a non-tender, well-healed surgical scar.  There was pain with eversion against resistance.  The diagnosis was “Continued pain status post excision of nonunion fragment right 5th metatarsal” and impact on duty performance was:

“The service member's MOS as 63S (heavy wheel mechanic) requires him to be able to run, jump, carry heavy tool boxes and be in heavy-load bearing conditions with carrying equipment and parts. The service member is currently unable to perform any of these tasks due to continued pain in the right foot.”

At the VA Compensation and Pension (C&P) exam performed on the date of separation, the CI reported continued pain in the right foot, especially after standing for long periods of time.  Physical exam revealed normal right ankle range-of-motion (ROM) with TTP at the surgical site.  He was able to walk on his heels and toes with discomfort when walking on his heels.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the right foot pain condition by application of the analogous VASRD code 5099-5003 (degenerative arthritis) and rated it 0%.  The VA applied code 5284 (other foot injuries) and rated it 10% for “moderate” symptoms.  The Board considered all appropriate coding options including 5003, 5284, and 5283 (malunion of, or nonunion of tarsal, or metatarsal bones).  
Giving consideration to the fact that the CI had a documented non-union at the base of the 5th MT and underwent a surgical resection of the non-united boney fragment, Board members agree, that the 5283 code in the most appropriate code for basing its rating recommendation.  That code, as well as the 5284 code, relies on the application of the same subjective descriptors of impairment to arrive at a rating level; which are copied here for the reader’s convenience:

Severe ................................................................	30%
Moderately severe .............................................	20%
Moderate ...........................................................	10%

The Board looked for objective functional criteria to assign an appropriate subjective rating descriptor to the CI’s right foot impairment.  Although his foot pain had decreased post-surgically, the evidence adequately supported the he could not perform MOS related duties.  He was improving with rest and his pain became worse only with strenuous activities.  The Board considers “moderate” impairment to connote significant or near constant pain with functional limitations on some occupational tasks and domestic chores; but little interference with routine activities, and no interference with essential activities of daily living.  While moderately severe disability connotes significant joint damage or deformity and pain with minimal use, imposing limitations on some critical tasks mobility and routine activities.  With these considerations, Board members agree that the CI’s right foot impairment was most consistent with the “moderate” subjective rating criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right foot pain condition.

Low Back Pain.  The Board’s main charge regarding this condition is evaluation of the PEB’s determination that “Spondylolysis is known to be a developmental abnormality, EPTS, without permanent service aggravation evident.”  The Board’s authority for recommending a change in the service’s EPTS determination is not specified in DoDI 6040.44, but is considered adjunct to its DoD-specified obligation to review service fitness adjudications.  The guidance related to EPTS and service aggravation of developmental abnormalities is excerpted below from DoDI 1332.38:

Hereditary and/or Genetic Diseases.  Any hereditary or genetic disease shall be evaluated to determine whether clear and unmistakable evidence demonstrates that the disability existed before the Service member’s entrance on active duty and was not aggravated by military service. However, even if the conclusion is that the disability was incurred prior to entry on active duty, any aggravation of that disease, incurred while the member is entitled to basic pay, beyond that determined to be due to natural progression shall be determined to be service aggravated. To overcome the presumption of sound condition, factual evidence based upon well-established medical principles as distinguished from personal medical opinion alone must be presented to rebut the presumption. The quality of evidence is usually more important than quantity. All relevant evidence must be weighed in relation to all known facts and circumstances relating to the condition. Findings will be made on the basis of objective evidence in the record as distinguished from personal opinion, speculation, or conjecture. When the evidence is not clear concerning whether the condition existed prior to service or if the evidence is equivocal, the presumption will not be deemed to have been rebutted and the member's condition will be found to have been incurred in or aggravated by military service.

According to a review article from the US National Library of Medicine:

“Spondylolysis is defined as a bony defect in the pars interarticularis of the vertebral arch.  It presents a weakness or stress fracture in one of the bony bridges that connects the upper with the lower facet joints.  This defect can either be asymptomatic or associated with significant low back pain (LBP).  This condition is present in up to 6% of the population.  Although the aetiology of this lesion is still unclear, it has been shown to have both hereditary and acquired risk factors, with an increased prevalence in men and athletes participating in certain high-risk sports.”

The Board concedes that the CI’s X-ray documented spondylolysis (shown to have a hereditary/developmental component) was EPTS; however, the evidence supports that service aggravation was present.  The evidence contains the CI’s entrance physical exam performed in March 2000 where there was no complaint of LBP prior to service and the physical exam documented a “normal” spine exam.  The CI began to experience intermittent LBP in May 2000 and attended physical therapy’s “back class” in June 2002.  The CI’s MOS required him to carry heavy tool boxes and be in heavy-load bearing conditions with carrying equipment and parts.  His LBP began after 3-4 months of service and rose to the level of being unfitting after 2 years of service.  After deliberation, Board members agree that the evidence supports the CI’s preexisting spondylolysis condition was permanently aggravated by service and therefore eligible for a disability rating.

The NARSUM simply noted the diagnosis of low back pain and “Neurosurgery consult for LBP, Unfit for duty.”  A neurosurgical evaluation performed a month prior to separation documented the lower lumbar pain that worsened with prolonged standing/bending and was worse in the morning.  The CI did lower back exercises and stretching with no improvement.  The physical exam was essentially normal.

The C&P exam noted daily, dull ache LBP with intensity level of 5-6/10 that increases to 8/10 with increased activity such as lifting heavy objects or push-ups or sit-ups.  He used non-steroidal anti-inflammatory medications and physical therapy without much improvement.  Imaging studies have been significant for spondylolisthesis of L4-5 and L5-S1.  The physical exam revealed a normal gait and ROM.  There was painful motion along with TTP over the lower lumbar spine.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB applied VASRD code 5239 (spondylolisthesis or segmental instability) and as discussed above, adjudicated the LBP condition as EPTS without permanent service aggravation.  The VA applied code 5242 (degenerative arthritis of the spine) and rated it 0%.  LBP conditions are rated using the General Rating Formula for Diseases and Injuries of the Spine.  That formula allows for a 10% rating for “…localized tenderness not resulting in abnormal gait or abnormal spinal contour…” even if the ROM was normal.  The C&P exam performed on the day of separation documents the presence of TTP over the lower lumbar spine which meets the 10% rating criteria.  Additionally, application of the VA’s 5242 code, which refers to code 5003 for rating, would also meet the 10% rating criteria for painful motion IAW §4.59 as documented on the C&P exam.  The Board members agree, that based on this evidence, it could be said with a greater than 50% probability that the condition was permanently aggravated or accelerated by the CI’s military service beyond the natural progression of the disease process.  All evidence considered there is reasonable doubt in the CI’s favor supporting recharacterization of the PEB adjudication for the chronic LBP condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the LBP condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine headache condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, and requires a preponderance of evidence.  The migraine headache condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All treatment record entries were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that migraine headaches 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 contended condition and so no additional disability rating is 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 right foot pain condition, the Board unanimously recommends a disability rating of 10%, coded 5283 IAW VASRD §4.71a.  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5239 IAW VASRD §4.71a.  In the matter of the contended migraine headache 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Foot Pain	5283	10%	
Low Back Pain	5239	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

SAMR-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 XXXXXXXXXXXXXXXXXX, AR20150008350 (PD201301577)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA