RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY

CASE NUMBER: PD1000130 SEPARATION DATE: 20060615

BOARD DATE: 20110817

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SSG/E-6 (21N, Construction Supervisor) medically separated for a lumbar spine condition. His pain started in May 2004 after an injury during deployment to Iraq and progressively worsened. He was not judged to be a surgical candidate and did not respond adequately to conservative management to enable him to perform within his military occupational specialty (MOS) or meet physical fitness standards. He was consequently issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Lumbar degenerative disc disease (DDD) with chronic low back pain was forwarded to the Physical Evaluation Board (PEB) as a medically unacceptable condition IAW AR 40-501. One other condition, idiopathic urticaria, was forwarded by the MEB but judged to meet retention standards. Other conditions included in the Disability Evaluation System (DES) file will be discussed below. The informal PEB adjudicated the lower back condition as unfitting, rated 20%, with application of the Veterans Administration Schedule for Rating Disabilities (VASRD). An initial appeal for a formal PEB was withdrawn and the CI was medically separated with a 20% disability rating.

CI CONTENTION: The CI states: “My initial VA Rating Decision granted 40% for my back condition. The MEB/PEB misinterpreted my medical conditions and improperly rated me at only 20% for that condition and gave me severance pay. The DoD [Department of Defense] should have used VASRD which would have resulted in higher ratings and a sufficient disability rating for retirement. I respectfully request consideration for medical retirement.” He additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

Service PEB – Dated 20060424	VA (2 Mo. Pre Separation) – All Effective Date 20060616
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Low Back Pain	5237	20%	Lumbar DDD w/Lumbar Strain	5242	40%*	20060425
Idiopathic Urticaria	Not Unfitting	Idiopathic Urticaria	7825	10%	20060425
↓No Additional MEB/PEB Entries↓	Post Traumatic Stress Disorder	9411	70%	20060926
	Tinnitus	6260	10%	20060425
	0% x 1 / Not Service Connected x 3	20060425
Combined: 20%	Combined: 90%

* Initial erroneous rating of 30%; subsequently corrected to 40% by VA.

ANALYSIS SUMMARY:

Chronic Back Pain. The clinical evidence from the MEB records which is relevant to the rating of the back condition is as follows: history of localized low back pain that does not radiate into the lower extremities and is exacerbated by physical activity; use of a wheelchair, walker, or cane to assist in ambulation; right lumbar paravertebral spasm; back pain with knee flexion and straight leg raise; decrease in lumbar lordosis; normal neurologic examination of the lower extremities; antalgic gait resulting in reported falls; slow gait with use of a cane; and difficulty with supine to sitting position change. Imaging studies revealed multi-level DDD and canal stenosis (narrowing) without foraminal (nerve exit) encroachment. Bone scan and electrodiagnostic studies were normal.

There were three thoracolumbar goniometric range-of-motion (ROM) evaluations which the Board weighed in arriving at its rating recommendation:

Thoracolumbar ROM	MEB (4 Mo. Pre-Sep)	VA C&P (2 Mo. Pre-Sep)	VA C&P (2 Mo. Post-Sep)
Flexion	35⁰	40⁰	20⁰
Combined	160⁰	210⁰	120⁰
Comment	Painful motion; + spasm; + gait and contour abnormality.	No change on repetitive motion; + spasm; + gait abnormality.	Worse on repetitive motion; + gait abnormality; + spasm and tenderness.
§4.71a Rating	20%	20%	40%

There were distinct differences in the ROM values on all three evaluations. As relates to the VA ROM values: In its de novo review of the initial rating for the lower back condition in July 2008 in which the rating was increased from 30% to 40%, the VA determined that the examination done two months post separation was more accurate in reporting the range of motion than the examination done two months pre-separation. The stated reason was that the pre-separation examination did not report repetitive testing; however, the pre-separation VA examination clearly documented, “The repetitive motion testing did not change range of motion, but it did increase the pain.” It is decrement of ROM, not increase of pain, that provides for De Luca modification of ratable ROM measurements IAW §4.71a. The second VA examiner did not address why the ROM had significantly deteriorated from the first pre-separation measurements, given that there was no interceding injury or other development in explanation of the more severe limitation of motion. The Board therefore cannot conclude that the post-separation VA examination was of higher quality or more reliable than the pre-separation VA examination. The Board must consider as well that the values documented by both VA examiners were derived from reported pain threshold with motion during an exam performed in the context of expressly providing a basis for disability rating; thus subject to loss of objectivity. Of additional relevance, the Service outpatient clinical notes commenting on gross ROM observations did not suggest the severe limitation of flexion measured at the second VA rating exam; although, significant gait disturbance and use of a cane were common entries. There was no evidence of incapacitating episodes or ratable peripheral nerve impairment in this case, and thus a §4.71a-based rating higher than 20% must rest on thoracolumbar flexion ≤ 30⁰. The crux of the Board’s rating recommendation therefore resides in whether or not to assign the prevailing probative value to the post-separation VA ROM evaluation. Although reasonable doubt must be overcome to not do so, the Board considered that: 1) Two of three goniometric ROM measurements yielded flexion > 30⁰; 2) The MEB examiner, unlike the VA examiners, was an orthopedic specialist; 3) Outpatient clinical notes did not suggest baseline ROM limitations as severe as those reflected by the post-separation VA exam; 4) The objective pathology in evidence is not inherently linked to severe disability; and, 5) The examination which must be weighed the heaviest in support of the highest rating is the one most vulnerable to the psychological influence of secondary gain on reported pain thresholds. 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’s rating determination for the lumbar spine condition. The choice of VASRD code is irrelevant to rating and therefore no change is recommended.

Other PEB Conditions. The other condition forwarded by the MEB and adjudicated as not unfitting by the PEB was idiopathic urticaria. This skin condition developed while the CI was deployed to Iraq and required evaluations by multiple dermatologists to determine the diagnosis and then the appropriate treatment. The dermatologist who completed the dermatology addendum to the MEB stated that “this condition of idiopathic urticaria while impairing the soldier in the short-term is not a condition which would disqualify him from active duty in IAW AR 40-501 since it is treatable and generally goes into long-term remission.” This condition was not profiled, implicated in the Commander’s statement, or noted as failing retention standards. It was reviewed by the Action Officer and considered by the Board. There was no indication from the record that this condition significantly interfered with satisfactory performance of MOS duty requirements. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change in the PEB fitness adjudication for the idiopathic urticaria condition.

Remaining Conditions. Prostate enlargement was identified in the DES file as were several additional non-acute conditions or medical complaints. None of these conditions were clinically active during the MEB period, none carried attached profiles and none were implicated in the Commander’s statement. These conditions were reviewed by the Action Officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. Additionally, post traumatic stress disorder, tinnitus, gastroesophageal reflux disease, and several other non-acute conditions were noted in the VA rating decision proximal to separation, but were not documented in the DES file. The Board does not have the authority under Department of Defense Instruction (DoDI) 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. 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. 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 chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the idiopathic urticaria condition, the Board unanimously recommends no change from the PEB adjudication as not unfitting. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

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
Chronic Low Back Pain	5237	20%
COMBINED	20%

______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100304, w/atchs.

Exhibit B. Service Treatment Record.

Exhibit C. Department of Veterans Affairs Treatment Record.

Deputy Director

Physical Disability Board of Review

= ,

SFMR-RB

DEPARTMENT OF THE ARMY

ARMY REVIEW BOARDS AGENCY

1901 SOUTH BELL STREET 2ND FLOOR

ARLINGTON, VA 22202-4508

12 SEP 2011

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB I WRAMC, Building 7, Washington, D,C. 20307-5001

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for AR20110017344 (PD201000130)

I have reviewed the enclosed Department of Defense Physical Disability Board of

Review (000 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

CF:

( ) 000 PDBR

( ) OVA

Deputy Assistant Secretary

(Army Review Boards)