RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  .                     BRANCH OF SERVICE:  Army
CASE NUMBER:  PD101181 SEPARATION DATE:  20090411
BOARD DATE:  20110127


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI)  was  a  National  Guard  SGT/E-5
(42A/Human Resources Specialist), medically separated for thoracolumbar  and
cervical spine conditions.  During training excercises in Kuwait  associated
with a 2004 deployment; the CI fell while dismounting a truck  and  suffered
radiating cervical and lumbar pain which forced a  medical  evacuation.   He
was subsequently diagnosed with multi-level degenerative disc disease (L4  -
SI and C3 - C6); which was not  amendable  to  surgery,  and  for  which  he
underwent  extensive  efforts  at  rehabilitation.   He  did   not   respond
adequately to perform within his Military Occupational  Specialty  (MOS)  or
meet physical  fitness  standards.   He  was  issued  permanent  U3  and  L3
profiles, and referred for a Medical Evaluation Board (MEB).   The  cervical
and lumbar diagnoses were forwarded to the Physical Evaluation  Board  (PEB)
as five separate medically unacceptable  conditions  encompassing  pain  and
the  discopathies  (adding  “with  radiculopathies”  to  the   lumbar   disc
nomenclature).  One other condition, adjustment disorder  with  anxiety  and
depression, was forwarded by the MEB as a  medically  acceptable  condition.
Other conditions included in the Disability  Evaluation  System  (DES)  file
are addressed below.  The PEB combined the submitted MEB  diagnoses  as  two
separately   unfitting   conditions:   lumbosacral   strain   and   cervical
intervertebral disc syndrome (IVCD); rated 10% each,  citing  criteria  from
the Veterans Administration Schedule for Rating Disabilities  (VASRD).   The
adjustment disorder was determined to be not  unfitting.   The  CI  made  no
appeals and was medically separated with a 20% combined  disability  rating.



CI CONTENTION:  The CI’s application consists of listing the Service and  VA
ratings for each condition identified by the  VA,  as  noted  in  the  chart
below.  For each he states, “I am requesting  to  be  compensated  for  this
issue.”  The application contains the additional statement,  “I  encountered
severe STRESS during this process which causes me to have Diabetes, my  unit
commanders and the PEB  treated  me  UNFAIRLY.  …  I  am  requesting  to  be
compensated for the DIABETES.”


RATING COMPARISON:

|Service IPEB – Dated       |VA (4 Mo. After Separation) – All Effective |
|20090130                   |Date 20090412                               |
|Condition                  |Code                                |Rating |
|Combined:  20%             |Combined:  60%                              |


*Initially deferred, then rated for separate conditions as above in VARD
dtd 20100401 retroeffective to 20090412.


ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that  suggests
Service 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 Service 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  Veterans’  Affairs  (DVA),
operating under a different set of laws (Title 38, United States  Code),  is
empowered to compensate service connected conditions and to periodically re-
evaluate  said  conditions  for  the  purpose  of  adjusting  the  Veteran’s
disability  rating  should  the  degree  of  impairment  vary   over   time.
Additionally, the  Board  acknowledges  the  CI’s  assertions  that  he  was
treated unfairly by the PEB and his unit commanders during the MEB  process.
 It is noted for the record that the Board has neither the jurisdiction  nor
authority to scrutinize or render opinions in reference to asserted  service
improprieties in the disposition of a case.  The Board’s  role  is  confined
to the review of medical records and all evidence  at  hand  to  assess  the
fairness of PEB rating determinations, compared to  VASRD  standards,  based
on severity at the time of separation.  It must also judge the  fairness  of
PEB fitness adjudications and its assessment of  other  potentially  ratable
conditions, based on Service eligibility and  the  fitness  consequences  of
conditions as they existed at the time of separation.

Spine  Conditions.   There  were  three  goniometric  range-of-motion  (ROM)
evaluations in evidence, with documentation of additional ratable  criteria,
which the Board weighed in arriving at its  rating  recommendation  for  the
cervical and thoracolumbar spine conditions.  All three of these  exams  are
summarized in the chart below.

|Goniometric  |MEB: Both 9 Mo.  |VA C&P: (Lumbar 9/Cervical 4) |
|ROM Lumbar & |Pre-Sep          |Mo. Post-Sep)                 |
|Cervical     |                 |                              |
|             |Lumbar  |Cervica|Lumbar        |Cervical      |
|             |        |l      |              |              |
|Combined     |210⁰    |300⁰   |150⁰/135⁰*    |340⁰          |
|Comment      |+ Tenderness; normal gait; abnormal             |
|             |thoracolumbar contour.                          |
|§4.71a Rating|20%     |10%**  |20%           |10%**         |


            *ROM findings after DeLuca applied






                                *With repetition,  applying  DeLuca.   **Via
           §4.71a criterion of tenderness.

The MEB ROM evaluation was done by a physical therapist  nine  months  prior
to separation and, based solely on ROM, the findings were consistent with  a
20% rating for the thoracolumbar spine and a 10%  rating  for  the  cervical
spine IAW with VASRD 4.71a.  This is  consistent  with  the  PEB’s  cervical
rating, but not with its lumbar rating.  The  PEB  rated  the  thoracolumbar
condition  solely  on  the  10%  VASRD   criterion   of   tenderness;   and,
specifically cited that the flexion findings  did  not  “correspond  to  the
level of clinical pathology” defined in the American  Medical  Association’s
(AMA) Guides to the Evaluation of  Permanent  Impairment,  6th  Edition  ed.
2008.  The VA  spine  evaluations  were  performed  in  temporally  separate
Compensation and Pension  (C&P)  examinations  as  reflected  in  the  chart
above.  The achieved ratings of 20% for the thoracolumbar spine and 10%  for
the cervical spine (normal  ROM,  but  documentation  of  “diffuse  cervical
spine tenderness”)  are  IAW  VASRD  §4.71a.   There  was  no  evidence  for
ankylosis or incapacitating episodes to justify a higher rating  for  either
spine  condition  than  those  achieved  by  application  of  the  ROM   and
tenderness criteria just discussed.  IAW  DoDI  6040.44,  the  Board  cannot
support  the  PEB’s  application  of  AMA  criteria  with  respect  to   the
documented  thoracolumbar  flexion  of   50⁰.    After   due   deliberation,
considering all of the  evidence  and  mindful  of  VASRD  §4.3  (reasonable
doubt),  the  Board  recommends  separation   ratings   of   20%   for   the
thoracolumbar and  10%  for  the  cervical  spine  conditions.   The  action
officer prefers the 5242 (degenerative arthritis  of  the  spine)  code  for
each condition, for  uniformity  and  clinical  specificity;  although,  the
choice of code is irrelevant to rating.

The  CI’s  contention  also  implies  that  right  lower   extremity   (RLE)
radiculopathy symptoms should be rated; and, the VA conferred a  10%  rating
for sciatic nerve impairment.  One  of  the  MEB  forwarded  conditions  (as
medically unacceptable) was “intervertebral disk herniation L4/5, L5/6  with
radiculopathies.”  There is no doubt that a  right  sciatic  neuropathy  was
diagnosed and clinically evident in this case, but most of the symptoms  and
findings were associated with radicular pain and  a  mild  L5/S1  dermatonal
sensory deficit.  The  narrative  summary  (NARSUM)  documented  normal  RLE
motor testing, although the VA post-separation  C&P  examination  noted  4/5
strength  in  some  groups.   A  neurology  consultant    during   the   MEB
evalualtion also documented 4/5  motor  testing  in  some  groups,  although
caveating with “? effort”  by  each  of  those  entries.   Citing  a  recent
electrodiagnostic study  (EMG),  the  same  consultant  noted  “a  minimally
abnormal study” with a diagnosis of “right S1  radiculopathy.”   Firm  Board
precedent is that a functional impairment tied to  fitness  is  required  to
support a recommendation for  addition  of  a  peripheral  nerve  rating  to
Service disability in spine cases.  The pain component  of  a  radiculopathy
is subsumed under the general spine rating as specified in §4.71a.   Also  a
mild lower extremity sensory deficit has no relevant  fitness  implications,
assuming proprioception (necessary for balance) is  unaffected  as  in  this
case.   Motor  weakness;  however,  does  have  ratable  Service  disability
consequences if it is significant enough to  impose  functional  limitations
beyond those intrinsic to the spine condition itself.   After  deliberation,
members agreed that the motor findings were inconsistent, relatively  minor,
and somewhat  speculative.   Considering  the  administrative  MOS,  it  was
concluded  that  there  was  not  unfitting   impairment   linked   to   the
radiculopathy; and,  therefore  the  Board  does  not  recommend  additional
Service disability rating on this basis.

Other PEB  Conditions.   The  other  condition  forwarded  by  the  MEB  and
adjudicated as not  unfitting  by  the  PEB  was  adjustment  disorder  with
anxiety and depression.  The CI was first evaluated by Behavioral Health  in
2006 to rule  out  posttraumatic  stress  disorder  (PTSD)  related  to  the
deployment.   The  CI  was  diagnosed  with  an  adjustment   disorder   and
associated  mood  disturbance  secondary  to  combat  experiences  and   was
followed up until  separation  with  regularly-scheduled  psychotherapy  and
medication trials.  The psychiatric addendum  to  the  NARSUM  documented  a
normal mental status exam; noted recent completion  of  a  master’s  degree,
and  assigned  a  Global  Assessment  of  Functioning  (GAF)  score  of   75
(indicative of transient and expectable reactions to psychosocial  stressors
with no more than slight impairment in social or occupational  functioning).
 The MEB psychiatrist opined that the CI met retention  standards,  and  the
profile was S2 (not generally associated with  unfitting  limitations).   No
psychiatric impairment was implicated in  the  commander’s  statement.   The
adjustment disorder  condition  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 duty performance.   All
evidence considered, there  is  not  reasonable  doubt  in  the  CI’s  favor
supporting a change in the PEB fitness adjudication for this condition.

Other Contended Conditions.  The CI’s application asserts  that  compensable
ratings should be considered for  pseudofolliculitis  barbae  and  diabetes.
The dermatological condition was under treatment during the MEB period,  and
precipitated temporary shaving profiles.  Regarding  diabetes,  the  CI  had
been noted with occasional elevations of fasting glucose since  2007.   This
was satisfactorily managed with dietary and weight  reduction  measures  and
overt diabetes was not diagnosed until a year  after  separation.    Neither
of these conditions were of clinical  or  occupational  significance  during
the  MEB  period,  neither  was  permanently  profiled,  and   neither   was
implicated in the commander’s statement.  Both were reviewed by  the  action
officer and considered by the Board.  All evidence considered, there is  not
reasonable   doubt   in   the   CI’s   favor    supporting    addition    of
pseudofolliculitis  barbae  or  diabetes  as  an  unfitting  condition   for
separation rating.

Remaining Conditions.  Other conditions identified in the DES file were  pes
planus, sinusitis, and insomnia.  Several  additional  non-acute  conditions
or medical complaints were also documented.  None of these  conditions  were
of clinical  or  occupational  significance  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.   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 reliance on  american
medical association guidelines for rating the  lumbar  spine  condition  was
operant in this case and the  condition  was  adjudicated  independently  of
that guidance by the Board.   In  the  matter  of  the  thoracolumbar  spine
condition, the Board unanimously recommends a rating of 20% coded  5242  IAW
VASRD §4.71a.  In the matter of  cervical  spine  condition  and  IAW  VASRD
§4.71a, the Board unanimously recommends no change  in  the  PEB  rating  of
10%.  In  the  matter  of  the  adjustment  disorder  associated  with  mood
disturbance, the  Board  unanimously  recommends  no  change  from  the  PEB
adjudication  as  not  unfitting.   In   the   matter   of   the   contended
pseudofolliculitis barbae, diabetes, and sciatic  radiculopathy  conditions;
the Board unanimously agrees that it cannot recommend any finding  of  unfit
for additional rating at separation.  In  the  matter  of  the  pes  planus,
sinusitis, and insomnia conditions or any other medical conditions  eligible
for Board  consideration;  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 and that the discharge with severance pay be
recharacterized to reflect permanent disability retirement, effective as of
the date of his prior medical separation:

|UNFITTING CONDITION                                |VASRD CODE |RATING |
|Degenerative Disc Disease, Thoracolumbar Spine     |5242       |20%    |
|Degenerative Disc Disease, Cervical Spine          |5242       |10%    |
|COMBINED   |30%    |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20101022, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record





                 President
                 Physical Disability Board of Review

SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency


SUBJECT:  Department of Defense Physical Disability Board of Review
Recommendation



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
                                       Deputy Assistant Secretary
                                           (Army Review Boards)