RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: BRANCH OF SERVICE: ARMY
CASE NUMBER: PD0900241 BOARD DATE: 20100107
SEPARATION DATE: 20070719
________________________________________________________________
SUMMARY OF CASE: This covered individual (CI) was an active duty NCO (communications) medically separated from the Army in 2007 after nearly 4 years of service. The medical basis for the separation was a back condition. He suffered a non-traumatic onset of back pain in 2004. This worsened over time with inadequate response to physical therapy (P.T.), medications and conservative management. An MRI in 2006 revealed mild to moderate degenerative changes with spondylosis and bilateral foraminal narrowing at L4/5 and L5/S1. Other than intermittent numbness in his feet, there were no significant radicular symptoms and he was not a surgical candidate. He was issued a permanent L3 profile and could not resume full MOS duties. He underwent an MEB which referred the back condition to the PEB as medically unacceptable. There were no other active medical conditions of significance at that time, and no additional entries on the MEB’s DA 3947. The PEB found the CI unfit for the back condition and he was separated with a 10% rating.
________________________________________________________________
CI CONTENTION: The CI (via his VSO representative) states: ‘Rating should be higher or equivalent to VA's rating decision. Army rated service member at 10%. VA rated service member at 20% for the same condition found unfit. Service member has been awarded other service connected conditions by VA.’
________________________________________________________________
RATING COMPARISON:
| Service PEB | VA (Pre-Separation) | |||||||
|---|---|---|---|---|---|---|---|---|
| Condition | Code | Rating | Date | Condition | Code | Rating | Exam | Effective |
| Lumbar Degenerative Disc Disease | 5299- 5242 | 10% | 20070611 | Degenerative Disc Disease, Lumbar | 5243 | 20% | 20070615 | 20070720 |
| No Additional DA 3947 Entries. | Non-PEB X 1 / NSC X 1 | |||||||
| TOTAL Combined: 10% | TOTAL Combined (Includes Non-PEB Conditions): 20% |
________________________________________________________________
ANALYSIS SUMMARY:
Back Condition. The language of the DA 199 reflects application of the USAPDA pain policy, but there is no evidence that this affected the 10% rating determined by the PEB. There are complete goniometric and spinal exams in evidence from the MEB and the VA. Both reflected pain as the end-point of measurement. The MEB exam noted spasm and tenderness; the VA exam did not. Neither noted an abnormal gait, abnormal contour or neurologic deficits. There were also P.T. notes and referral notes from a civilian physiatrist in evidence as a source of additional information reflecting on degree of impairment. Relevant determinants of the Board rating recommendation are summarized in the table below.
Thoracolumbar ROM |
MEB 5/22/07 |
VA C&P Exam 6/15/07 |
P.T. Comments 4/9/07 |
Physiatrist Note 8/16/06 |
|---|---|---|---|---|
| Flex | 64⁰ | 60⁰ | ‘Active flexion of the LS spine 45⁰ limited by pain.’ | ‘The patient was able to bend to nearly 90⁰ without pain.’ |
| Combined | 145⁰ | 200⁰ |
The MEB exam supports a 10% rating IAW VASRD §4.71a. The VA examination supports the 20% VA decision, based on 60⁰ flexion. The exams are almost contemporaneous, although the VA exam is closest to separation. The flexion measurements are on the cusp between the 10% and 20% criteria in the general spine formula. The two non-goniometric exams referenced above probably reflect the ‘good day, bad day’ spectrum. The P.T. data is in the separation period, whereas the physiatrist note is nearly a year before. With deference to VASRD §4.3 (reasonable doubt), the Board recommends that the CI be given the benefit of the 20% rating. The PEB’s 5242 degenerative spine code is a better clinical fit than the VA’s 5243 disc code, although the analogous prefix is unnecessary. There are no ratable peripheral nerve impairments associated with the case.
Other Conditions. The only additional conditions documented in the DES packet (entered on the MEB physical) were stable hypertension, a history of gastric reflux and a history of right knee swelling. There is no evidence of any acuity associated with these issues at the time of separation. His physical profile and Commander’s statement noted only the back condition as an impairment to performance. The CI was subsequently rated by the VA for PTSD symptoms related to a 2005 OIF deployment. The CI denied psychiatric symptoms on the post-deployment health assessment and MEB physical. The VA rating decision for PTSD stated ‘Your service treatment records do not note a diagnosis or any treatment for post traumatic stress disorder.’ The CI was also subsequently rated by the VA for patellofemoral pain syndrome of both knees. No extremity complaints or exam abnormalities were noted on the VA pre-separation rating examination, and there were no physical findings associated with the knee complaint on the MEB physical. Other than the back condition, only hypertension and reflux disease were coded by the VA from the pre-separation exam. Neither of the latter achieved a compensable rating. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.
________________________________________________________________
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. As discussed above, PEB application of the USAPDA pain policy to the back condition was operant in this case and adjudicated independently of that policy by the Board. In the matter of the lumbar spine condition, the Board unanimously recommends a rating of 20% coded 5242 IAW VASRD §4.71a. In the matter of the hypertension, reflux disease, PTSD, knee conditions and all of the CI’s other medical conditions; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.
________________________________________________________________
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 |
|---|---|---|
| Lumbar Degenerative Disc Disease | 5242 | 20% |
| COMBINED | 20% |
________________________________________________________________
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20090315, w/atchs.
Exhibit B. Service Treatment Record.
Exhibit C. Department of Veterans' Affairs Treatment Record.
AF | PDBR | CY2009 | PD2009-00148
The PEB found the CI unfit only for the neck and back conditions, rated 10% each, and he was medically separated with a combined disability rating of 20%. Although the condition was rated 10% by the VA, the rating examiner described no active symptoms or treatment. In the matter of the asthma, bilateral hearing impairment, right shoulder condition, left knee condition, right ankle condition, acid reflux, headache condition or any other medical conditions eligible for Board consideration;...
AF | PDBR | CY2012 | PD 2012 00066
The chronic low back pain with degenerative disc disease was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.The MEB also identified and forwarded six other conditions(bilateral knee pain, sleep apnea, hypertension, dyslipidemia, delayed PTSD and adjustment disorder) all meeting retention standards for PEB adjudication.The Informal PEB adjudicated “degenerative arthritis of the spine”as unfitting, rated at 20%.The remaining conditions were determined to be not unfitting.The CI...
AF | PDBR | CY2009 | PD2009-00237
Whether or not related to the back condition, any of these conditions would need to be in themselves unfitting for the Board to recommend them for additional rating. That rating decision stated, ‘Your service medical records do not show any treatment for or diagnosis of depression while in service.’ His physical profile was S1. There is no evidence that any of them were clinically active during the MEB and none were covered by the physical profile or Commander’s statement.
AF | PDBR | CY2011 | PD2011-00524
ROM measurements from two different MEB PT evaluations are charted above; and, it is immediately apparent that the PT evaluation at six months prior to separation (three weeks prior to the MEB physician exam) is sharply disparate with the other goniometric evidence. The Board determined therefore that none of the stated conditions were subject to service disability rating. RECOMMENDATION : The Board, therefore, recommends that there be no recharacterization of the CI’s disability and...
AF | PDBR | CY2009 | PD2009-00098
The Physical Evaluation Board (PEB) adjudicated the back condition (rated 10%) and OSA (rated 0%) as unfitting. The neurology addendum and the MEB physical, both within two months of the VA examination, documented a normal gait. Other Conditions .
AF | PDBR | CY2009 | PD2009-00274
All evidence considered and IAW VASRD §4.3, reasonable doubt is resolved in favor of the CI in recommending a separation rating of 10% for the left knee condition (coded 5299-5257) plus a 10% rating for the right knee condition (coded 5259). The CI carried an H3 profile for his hearing impairment and H2 is required for the MOS, but there is no evidence that his prior performance was ever affected by the condition. In the matter of the bilateral knee conditions, the Board unanimously...
AF | PDBR | CY2012 | PD2012 01762
The PEB adjudicated the “lumbar degenerative disc disease (DDD)” as unfitting, rated 20%with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The VA coded the DDD lumbar spine with spondylosis as 5242 with 5243intervertebral disc syndrome rated at 20%.The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine...
AF | PDBR | CY2011 | PD2011-00859
The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of fitness decisions and rating determinations for disability at the time of separation. Lumbar Spine Condition . In the matter of the contended lumbar neuropathy, hypertension, and hypercholesterolemia conditions, the Board unanimously agrees that it cannot recommend any finding of unfit for additional disability rating.
AF | PDBR | CY2010 | PD2010-01174
I would like to be rated for other medical conditions as well. As an example, one examiner documented that the CI “moaned and groaned throughout the exam;” and, frankly stated in the CI’s report that he “seems to be able to handle his pain with ibuprofen, which is disproportionate to the amount of pain he expressed today.” It is also noted that 13 months post separation, after the final lumbar spine disability rating, the VA records documented improvement of lumbar ROMs to approximately 50%...
AF | PDBR | CY2013 | PD-2013-02574
SEPARATION DATE: 20050508 Post-Separation) ConditionCodeRatingConditionCodeRatingExam Chronic Back Pain due to Lumbar Degenerative Disc Disease…5299-524220%Paravertebral Muscle Spasms…5293-529240%VA PN*Right Leg Radiculopathy…5293-852010%VA PN*No Additional MEB/PEB Entries in Scope Combined: 60%Combined: 20%Derived from VA Rating Decision (VARD)dated 20050826. Muscle strength in the bilateral lower extremity was normal and sensory examination recorded decreased pinprick sensation in the...