RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00854
BRANCH OF SERVICE:  Army	BOARD DATE:  20150219
SEPARATION DATE:  20080109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Cavalry Scout) medically separated for back and ankle pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back and ankle conditions, characterized as “chronic low back pain with herniated discs and radicular symptoms” and “chronic left ankle pain and instability,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded hip pain, onychomycosis, herpes, and elevated blood pressure as condition not falling below retention standards.  The Informal PEB adjudicated “intervertebral disc syndrome” and “right ankle pain” as unfitting, rated 10% and 0%, respectively.  The remaining conditions were determined to not be unfitting and therefore not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The disabilities that I got while on active duty are conditions that affect me in every day life/work.  The Doctors while on active duty stated that these conditions will most likely never go away even with treatments and on [sic] surgery.  These conditions still affect me every day and has affected me attaining and maintaining gainful employment.”

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 20071218	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
IVDS	5243	10%	Chronic LBP DDD Radiculopathy	5237	NSC	STR	
Left Ankle Pain	5099-5003	0%	Chronic Lt Ankle Pain	5271	NSC	STR	
Hip Pain	Not Unfitting	Lt Hip Pain	5250-5003	NSC	STR	
		Rt Hip Pain	5250-5003	NSC	STR	
Onychomycosis	Not Unfitting	Onychomycosis Nails	7199-7122	NSC	STR	
Herpes Simplex Type II	Not Unfitting	No VA Entry	
Elevated Blood Pressure	Not Unfitting	No VA Entry	
Other x 0  (Not in Scope)	Other x 3 	
Combined:  10%	Rating:  NSC	
Derived from VA Rating Decision (VARD) dated 20080625 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  The CI reported no history of low back pain (LBP) on either the pre-screen history or the accession history.  He entered active duty on 15 February 2007.  The physical fitness scorecard showed that the CI completed the 2-mile run in 13 minutes, 46 seconds on 14 April 2007 for a score of 95 (100 maximum) and in 13 minutes, 28 seconds for a score of 98 on 1 June 2007.  On the same test days, he was able to accomplish 56 and then 67 sit-ups.  On 27 June 2007, he reported to his first post-training duty station.  On 6 July 2007, a periodic health assessment had “No” circled for any chronic illness or daily medications.  He was noted to exercise for at least 20 minutes 3-4 times a week.  On a pre-deployment assessment that same day, the CI noted that his health was very good, that he had no medical problems, and had no concerns or complaints about his health.  Eighteen days later, on 24 July 2007, he noted a 4-month history of LBP without a known mechanism of injury.  On examination, the range-of-motion (ROM) and neurological examination were normal.  Provocative testing for nerve root irritation was positive on the left.  An X-ray was normal.  He was referred for chiropractic therapy and seen on 2 August 2007.  The ROM was noted to be normal, but extension and left lateral flexion reproduced his LBP.  He was seen again a week later and noted to have spasm of the muscles of the lower back, but no comment was made on the ROM.  A magnetic resonance imaging (MRI) on 13 September 2007 was remarkable for small herniation of three discs at L2-3, L3-4, and L4-5 which did not impinge the nerve roots.  He was evaluated in orthopedics on 18 October 2007.  The CI reported that he had developed back and leg pain while in basic training in March and April of 2007.  His pain was aggravated by the wear of Kevlar and increased activity.  However, on examination he was noted to move easily in the room without difficulty and had a normal gait.  Some tenderness of the paraspinal muscles was present and he had some discomfort with flexion and extension.  The neurological examination was normal and provocative testing for nerve root irritation was negative.  At the MEB examination, just over 2 months prior to separation, the CI reported back pain since basic training.  The examiner noted tenderness to palpation; the neurological examination was normal.  The commander noted that the CI immediately began showing signs of back and ankle problems after arrival from basic training.  He had not been able to perform duties of his MOS or accomplish a physical fitness test.  The CI was noted to have a negative attitude which hindered his ability to perform even menial tasks not related to his MOS.  The narrative summary (NARSUM) was dated 28 November 2007, 6 weeks prior to separation.  The CI reported that he first had LBP at the age of 21, 8 years prior to accession, and did not cite a particular injury.  He stated that he was asymptomatic at accession, but that had recurrent symptoms in March 2007, which he did not report so as to finish training.  After arrival at his first duty station, the symptoms worsened and he presented for evaluation.  He endorsed radiation of pain into his lower extremities and almost constant numbness of his left great toe.  He took an anti-inflammatory agent and a muscle relaxant for pain as needed.  The ROM was reduced by pain to 55 degrees of flexion and 200 degrees combined ROM.  Three maneuvers not expected to produce pain in this condition were present.  Tenderness was present, but spasm absent.  The CI failed to show for multiple VA Compensation and Pension examinations until 5 years after separation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10% using the code 5243 (intervertebral disc syndrome, IVDS).  The VA did not service-connect the back for 3 years after separation.  It later rated it at 10%, effective on 10 February 2011, based on the 25 April 2013 examination.  The Board considered the evidence.  The ROM in the chiropractic clinic was recorded as normal in August 2007.  The ROM in evidence on the MEB examination supports a 20% rating, but maneuvers not expected to produce pain did so on this examination, reducing the probative value of these measurements.  In addition, there was no history of additional injury.  Although the CI reported an 8-year history of pain with aggravation in March 2007 while in basic training, he actually did well in physical fitness testing.  At the orthopedic appointment, he was able to move about easily and had a normal gait, inconsistent with the reduced ROM measured.  The MRI showed minimal herniation of the discs without impingement of the nerves.  The Board determined that the totality of evidence does not support the limitation in ROM shown on the MEB examination.  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 back condition.

Left Ankle Condition. The CI reported a 4-month history of foot pain at the 24 July 2007 acute care appointment.  On 17 September 2007, X-rays were normal other than a normal congenital variant.  He was seen that day in podiatry and thought to have had an ankle sprain.  An MRI performed a week later showed bone marrow edema, a cartilage defect in one of the ankle bones, and a partial tear of two ankle ligaments.  At the 17 October 2007 podiatry evaluation, he wore an ankle brace and reported continued pain.  Swelling of the ankle was present.  The CI moved easily with a normal gait at the 18 October 2007 orthopedic evaluation.  The MEB physical examiner only noted tenderness to palpation and decreased ROM (not quantified).  In podiatry on 7 November 2007, 2 months prior to separation, he reported that he had rolled his ankle in February 2007.  He was noted to have swelling and tenderness of the ankle pain elicited by motion.  On the NARSUM, the CI reported he “rolled” his left ankle during a drill ceremony in March 2007.  Following this, he began to experience recurrent “rolls,” but did not seek medical attention until at his first duty station.  The ROM was reduced on examination to 10 degrees toes up movement (15 on the right; 20 is normal) and 28 degrees toes down (a normal 45 degrees on the right).  He declined both surgery and injections.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the ankle as analogous to degenerative arthritis, 5099-5003, and rated it at 0%.  The VA did not rate the ankle until remote from separation as discussed above.  The Board considered the evidence.  The CI had a normal gait at the orthopedic evaluation, which was a month after the abnormal MRI and a week after the podiatry evaluation in which he was wearing a brace and had swelling.  The examination at the NARSUM was limited to ROM and did not comment on gait or stability.  The Board considered the evidence.  The limitation in ROM on the NARSUM was supported by the MRI 2 months previously.  While the orthopedic evaluation noted a normal gait, implying that the CI had healed from a sprain, there is no comment on gait or stability in the NARSUM.  The ROM reduction supports a 10% rating under the code 5271 (moderate limitation in ankle motion).  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 left ankle condition using the 5271 code.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended chronic hip pain, onychomycosis (toenail fungus), herpes simplex, and elevated blood pressure conditions were 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, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  These conditions were not profiled, implicated in the commander’s statement or judged to fail retention standards.  Review of the records shows that the CI had one blood pressure check (normal) and hip X-rays (also normal).  Otherwise, there were no clinical visits in the record for any of these conditions.  All were reviewed and considered by the Board.  There was no performance based evidence 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 so no additional disability ratings are 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 back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the contended chronic intermittent hip pain, onychomycosis, herpes simplex virus, and elevated blood pressure 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 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	
Intervertebral Disk Syndrome	5243	10%	
Left Ankle Pain	5271	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150011023 (PD201400854)

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		     XXXXXXXXXXXXXXX
		     Deputy Assistant Secretary of the Army
		         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA