RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1000715 SEPARATION DATE: 20070207

BOARD DATE: 20120912

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M / Motor Transport Operator), medically separated for chronic back pain and chronic left ankle pain. The low back pain condition began while deployed to Iraq in 2004. He was evacuated from theater and received subsequent operative treatment. The ankle condition began as a consequence of injury in 2002 and was not associated with a surgical indication. Neither condition could 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 MEB forwarded lumbar spondylolysis status post fusion and post traumatic arthralgia status post left ankle injury to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions appeared on the MEB’s submission. The PEB adjudicated the chronic back pain status post L4-L5, L5-S1 fusion and chronic left ankle pain conditions as unfitting, rated 10% each, with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with a 20% disability rating.

CI CONTENTION: “PTSD never considered by Med Board. VA rate 30% effective date after discharge. Being treated on AD at time of discharge. DA 199 states not combat related however injury occurred in Iraq due to enemy action (IED).”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (DoDI) 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The unfitting lumbar back pain and left ankle pain conditions meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. PTSD is not within the Board’s purview. 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 Army Board for Correction of Military Records.

RATING COMPARISON:

*VA rated 10% (combined 20%) after second period of service ended 19920113. Ratings discontinued 20011031 when CI returned to active duty. Same ratings resumed after separation 20070208. Rating decision 20080428 increased lumbar spine to 20% effective 20071203, based on new exam 20071228; then to 40% effective 20080912; 70% combined including non-PEB conditions

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time. With regard to the CI’s assertion that the DA Form 199 was erroneous in not reflecting that his injury was combat-related, the Board must note for the record that it has neither the jurisdiction nor authority to scrutinize or render opinions in reference to suspected service improprieties in the disposition of a case.

Chronic Back Pain Condition. There are no available service treatment records regarding the low back condition from 16 August 2005 until the MEB exam on 15 September 2006. Attempts were made to find any records that may exist, but were unsuccessful. The CI had a low back condition rated by the VA at 10% after a previous separation from the service in 1992. His back pain began while deployed to Iraq in 2004, progressively worsened and was associated with pain radiating to both lower extremities. Magnetic resonance imaging (MRI) showed L4-S1 degenerative disc disease. Spinal fusion surgery of L4-L5 and L5-S1 was performed on
2 November 2011, but he continued to experience constant lower back pain that worsened with activity, and was occasionally associated with pain radiating to his knees and with numbness. A post-operative CT scan on 4 November 2004 and lumbar X-rays on 16 August 2005 showed no surgical complications or evidence of hardware failure. There were three giometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

*Inclinometer specified for all flexions; goniometer for rotations

At the MEB examination 5 months prior to separation the CI reported that bending, twisting, turning, lifting, prolonged sitting or standing, kneeling and lying down exacerbated his pain. A back brace was used for support. The examiner noted a normal gait and ROM limited in all directions, with pain elicited by ROM. Lumbar paraspinal tenderness was present. Straight leg raise (SLR) testing was negative, and strength and deep tendon reflexes (DTR) were normal. The exam was silent regarding muscle spasm and spinal contour. The commander’s statement reported that since March 2005 he worked continuous 8 hour shifts 5 days per week. The lumbar condition was noted to interfere with his MOS duties. He was unable to drive or ride in a military vehicle without an air ride suspension, and could not wear any protective equipment. His narcotic medication use prevented him from safely firing a weapon. An outpatient note 3.5 months prior to separation indicated the CI was in no pain. The orthopedic narrative summary (NARSUM) examiner approximately 3 months prior to separation noted that the CI was unable to climb on or off vehicles or to run. Examination documented tenderness along well-healed incision sites of the lumbar area. Paraspinal muscle spasm was also present. Straight leg raise (SLR) testing was negative and sensory examination was intact. Gait and spinal contour were not mentioned. The MEB physical therapist reported that abnormal limitation of motion was due to mechanical limitations of spinal surgery and pain. At an outpatient clinic visit 2 months prior to separation, the CI reported an inability to participate in previously enjoyed activities such as horseback riding and paintball due to his back condition. He stated that his pain level was 5/10 because he ran out of his narcotic pain medication. The provider noted him to be in “some mild physical discomfort.” At the VA Compensation and Pension (C&P) exam 5 months after separation, the CI reported ongoing low back pain with occasional radiation into the left leg to the knee. He experienced exacerbations of pain 4 to 6 times per week. He would awaken at night due to pain that would last 35 to 40 minutes. Pain exacerbations did not interfere with his ability to function. He could walk from three-quarters to one mile. The condition had no effect on his occupation as a part-time nightclub security supervisor. There was no effect on activities of daily living except for occasionally needing assistance dressing. Pain medication taken as needed was helpful. Examination revealed a normal posture, stance and gait. Lumbar ROM was not additionally limited after five repetitions. SLR was negative, and lower extremity strength, DTR and sensation were normal. At a second C&P exam performed 11 months after separation the CI reported pain that occurred 1 to 6 days per week and lasted for hours. It was produced by movement, bending, squatting or cold weather. Over the counter pain medication was helpful. He was able to walk one-quarter of a mile. Back pain was exacerbated by the requirements of his full-time occupation as a mechanic. Participation in sports was mildly affected while exercise was moderately affected by his low back condition. Examination revealed normal posture and gait. Lumbar ROM was not additionally limited after three repetitions. Although spasm was absent, there was guarding which was not severe enough to result in abnormal gait or spinal contour. Sensation, DTR’s and muscle strength were normal. Lasegue’s sign (possible indicator of lumbar nerve root irritation) was positive bilaterally.

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5241 code (spinal fusion), with application of the USAPDA pain policy. Under the 5243 code (intervertebral disc syndrome) the VA initially rated the condition at 10%, but increased it to 20% effective 3 December 2007, based on the C&P exam referenced above (28 December 2007). The Board notes the significant disparity between the examinations reflected in the ROM chart above. The flexion measurements obtained for the MEB and by the second VA examiner support a 40% rating based on limited flexion, while the flexion and combined ROM by the first C&P examiner supports a 10% rating. In reconciling these exams, Board members first considered that there were inconsistencies with all of them. The severity of flexion on the service exam (10 degrees) and second VA exam (30 degrees) was inconsistent with other history and exam findings. Likewise, the 90 degrees of flexion on the first C&P exam was inconsistent with a history of lumbar fusion, which would certainly result in diminished flexion on a mechanical basis, a fact reflected by the MEB physical therapist’s statement. Also debated was the significance of the use of an inclinometer instead of a goniometer by the MEB physical therapist to measure all flexion motions. Inclinometers can be used in a way that isolates spinal segments, which provides numbers that do not correlate with goniometric normal values reflected in the VASRD. Therefore, the 10 degrees of flexion documented by the MEB physical therapist may have in fact equated to a higher goniometric value. After considering the limitations of physical activity noted by the commander and NARSUM examiner, objective findings of spasm or guarding over time by different examiners, and the ROM data just discussed, Board members agreed that the disability picture in this case more nearly approximates the criteria for the 20% rating. The Board also considered whether a higher rating could be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes. However, the minimum rating under that formula was not met. The Board finally considered if additional disability was justified for the pain that radiated to the lower extremities, but the evidence in this case does not support the presence of functional impairment attributable to peripheral neuropathy. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic back pain condition.

Chronic Left Ankle Pain Condition. The ankle condition began in May 2002 as a result of an inversion injury from stepping in a hole. The clinical record is silent regarding the left ankle from 20030625 until the MEB physical examination on 20060915. X-rays at the time of injury showed no bone pathology and magnetic resonance imaging (MRI) three months after injury showed ankle swelling. There were three ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

*Assumed to mean zero degrees dorsiflexion

At the MEB exam 5 months prior to separation the CI complained of intermittent left ankle pain and swelling associated with prolonged weight bearing. Examination noted pain that was elicited by dorsiflexion. Full ROM was not measured, and there was no ankle swelling. The orthopedic NARSUM examiner 3 months prior to separation stated the condition caused difficulty running prior to his spine surgery in 2004. Exam noted mild edema about the ankle with tenderness to palpation laterally. No instability was present. At the C&P exam 5 months after separation the CI reported pain, weakness, stiffness, swelling, instability, locking and lack of endurance. Pain was exacerbated with prolonged walking and standing, and he occasionally used an ankle brace. Examination revealed no additional loss of motion with repetition. The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5099-5003 code (analogous arthritis), with application of the USAPDA pain policy. The VA’s 10% rating under the 5271 code (ankle, limited motion of) was based on a “moderate” degree of motion impairment. The Board could find no pathway to a rating higher than 10% under the 5271, 5272, 5273 or 5283 codes. 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 left ankle pain 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. As discussed above, PEB reliance on the USAPDA pain policy for rating the chronic back pain and chronic left ankle pain was operant in this case and the conditions were adjudicated independently of that policy by the Board. In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 20% coded 5241 IAW VASRD §4.71a. In the matter of the chronic left ankle 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 the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100608, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20120016883 (PD201000715)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

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:

a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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 XXXXXXXXXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA