RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:       BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100354      SEPARATION DATE:  20071203
BOARD DATE:  20120117


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was an active duty SPC/E-4  (92Y,
Unit Supply Specialist), medically separated for spinal  fusion  L4-5.   The
CI developed back pain during an  Iraq  deployment  in  October  2005  while
lifting crates of ammunition onto a  five-ton  truck.   He  was  treated  in
theater with non-steroidal anti-inflammatory medications,  physical  therapy
(PT) and epidural steroids,  without  resolution  of  his  symptoms.   After
redeployment of his unit, the CI underwent  an  L4-L5  disk  fusion  in  May
2007.  Although  he  had  significant  improvement  in  his  symptoms  after
surgery, the CI did not respond adequately to perform  within  his  Military
Occupational Specialty (MOS) or meet physical  fitness  standards.   He  was
issued a permanent L3/S2 profile and underwent a  Medical  Evaluation  Board
(MEB).  The L4-5 intervertebral  disk  disease,  status  post  (s/p)  fusion
condition was forwarded to the Physical Evaluation Board (PEB) as  medically
unacceptable IAW AR 40-501.  Three other conditions, as  identified  in  the
rating chart below, were  forwarded  on  the  MEB  submission  as  medically
acceptable  conditions.   The  PEB  adjudicated  the  spinal   fusion   L4-5
condition  as  unfitting,  rated  10%  with  application  of  the   Veterans
Administration Schedule for Rating Disabilities (VASRD).   The  CI  made  no
appeals and was medically separated with a 10% combined disability rating.


CI CONTENTION:  “Conditions have  gotten  increasingly  worse.   Along  with
hearing & PTSD (posttraumatic stress  disorder)  along  with  constant  neck
problems.”


RATING COMPARISON:

|Service IPEB – Dated 20071003|VA (3 Mo. After Separation) – All        |
|                             |Effective Date 20071204                  |
|Condition      |Code         |Rating                                   |
|↓No Additional MEB/PEB       |Radial Nerve, Inflammation …     |8614   |
|Entries↓                     |                                 |       |
|Combined:  10%               |Combined:  70%*                          |


* VA added 8520, L & R leg sensory deficit/numbness at 10%  each;  effective
20100730 (combined 80%)


ANALYSIS SUMMARY:  The Board acknowledges the  sentiment  expressed  in  the
CI’s  application  regarding  the  significant  impairment  with  which  his
service-incurred condition continues to burden him.   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.  The DES has neither the role  nor  the  authority  to  compensate
Service members for anticipated future severity or  potential  complications
of conditions resulting in medical separation.  That role and  authority  is
granted by Congress to the Department of Veterans’ Affairs (DVA),  operating
under a different set of laws (Title 38, United  States  Code).   The  Board
evaluates  DVA  evidence  proximal  to  separation  in   arriving   at   its
recommendations, but its authority resides in  evaluating  the  fairness  of
DES fitness decisions and rating determinations for disability at  the  time
of separation.  The Board also acknowledges the CI's  contention  suggesting
that service  ratings  should  have  been  conferred  for  other  conditions
documented at the time of separation and for conditions not diagnosed  while
in the service (but later determined to be service connected  by  the  DVA).
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.  The DVA,  however,  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 his degree of impairment vary over time.

Spinal Fusion L4-5 Condition.  Service treatment records (STR)  dating  back
to 2006 document complaints of low back pain radiating to the right hip  and
thigh associated with numbness in the right leg and foot.  A  2006  magnetic
resonance image diagnosed a broad based disc bulge at L4/5  associated  with
a posterior  annular  tear  and  moderate  to  severe  right  neuroforaminal
narrowing.  Definitive treatment was delayed  due  to  operational  concerns
which  precluded  the  CI’s  early  evacuation  from   theater.    Following
redeployment of his unit, the CI underwent  an  L4/5  fusion  in  May  2007.
Post-operative neurosurgery clinic notes documented significant  improvement
in the CI’s pain symptoms; however they noted tenderness of  the  right  and
left paraspinous musculature, persistent right lower extremity  numbness  in
the L5 distribution and  loss  of  the  right  patellar  reflex.   Follow-up
lumbar spine computed  tomography  (CT)  scans  confirmed  progressive  bony
fusion  at  the  L4-L5  intervertebral  space  and  intact  spinal  fixation
hardware.  The study also documented  significant  multi-level  degenerative
changes of the spine and Grade I spondylolisthesis at  L4-L5.   Despite  the
CI’s improved condition, the commander’s statement  commented  that  the  CI
was unable to wear  his  personal  protective  equipment,  operate  military
vehicles  or  lift  moderate  to  heavy  loads  in  and  out  of   vehicles.
Additionally, he had been unable to participate in field  training  or  take
an Army physical fitness test.

There were three goniometric range of motion (ROM) evaluations  in  evidence
which the Board weighed in arriving at  its  rating  recommendation.   These
were the PT evaluation, the MEB narrative summary and  the  VA  Compensation
and Pension (C&P) examination.  The exam  findings  are  summarized  in  the
chart that follows.

|Goniometric ROM|PT ~ 4 Mo.     |MEB ~ 3 Mo.    |VA C&P ~ 3 Mo.    |
|- Thoracolumbar|Pre-Sep        |Pre-Sep        |After-Sep         |
|Flex (0-90)    |0-70⁰          |0-60⁰          |0-90⁰             |
|Ext (0-30)     |0-20⁰          |0-15⁰          |0-20⁰             |
|R Lat Flex     |0-5⁰           |0-5⁰           |0-20⁰             |
|(0-30)         |               |               |                  |
|L Lat Flex     |0-5⁰, 0-10⁰,0- |0-10⁰          |0-20⁰             |
|(0-30)         |5⁰             |               |                  |
|R Rotation     |0-20⁰, 0-25⁰,  |0-20⁰          |0-30⁰             |
|(0-30)         |0-25⁰          |               |                  |
|L Rotation     |0-20⁰, 0-20⁰,  |0-30⁰          |0-30⁰             |
|(0-30)         |0-25⁰          |               |                  |
|COMBINED (240) |140⁰           |140⁰           |210⁰              |
|Comment:       |Pain limited   |Mechanical     |Normal gait and   |
|Surgery ~7 Mo. |right lateral  |limitation of  |posture; pain     |
|Pre-Sep        |flexion; no    |flexion; pain  |flares 3x / wk;   |
|               |spasm, abnormal|on lateral     |Neg SLR; painful  |
|               |contour or     |bending;       |ROM; add’l        |
|               |abnormal gait; |Waddel’s –     |limitation after  |
|               |Waddell’s      |regional       |repetitive motion |
|               |stocking       |tenderness; No |and lack of       |
|               |sensory loss,  |spasm; Neg SLR |endurance due to  |
|               |skin discomfort|(see text for  |pain without      |
|               |on light       |neuro eval)    |change in ROM; R. |
|               |palpation      |               |patella reflex    |
|               |               |               |absent, Achilles  |
|               |               |               |1/2; R. gluteal   |
|               |               |               |decreased lt touch|
|§4.71a Rating  |10%            |20%            |10%               |


All three exams documented limitation of motion of the  lumbar  spine,  with
the MEB and PT exams specifically noting limitation  of  flexion.   The  MEB
exam additionally noted mechanical limitation of flexion as well as pain  on
lateral bending.  The VA exam documented pain throughout ROM and noted  that
repetitive  motion  of  the  thoracolumbar  spine  resulted  in  a  lack  of
endurance secondary to pain, without change  in  ROM.   None  of  the  exams
documented abnormal gait, spasm or abnormal contour of the  spine.   The  VA
exam additionally  noted  decreased  light  touch  sensation  in  the  right
gluteal area and decreased right patellar and Achilles  reflexes.   The  MEB
examiner and the physical therapist commented on the presence  of  Waddell’s
signs.  The  MEB  examiner  stated  “Waddel  signs  are  positive  1/7  with
regional tenderness.”  The  physical  therapist  noted  skin  discomfort  on
light palpation and stocking sensory loss in an entire extremity or side  of
the body as positive  Waddel  signs.   Neither  the  MEB  nor  the  PT  exam
included specifics on these findings,  and  neither  documented  a  detailed
neurologic examination.  With regard to the comment on Waddel’s at  the  MEB
and PT exams, neurosurgery (five months pre-separation) noted  numbness  and
tingling  sensation  in  the  bilateral  lower   extremities   in   the   L5
distribution; and tenderness of the  left  and  right  paraspinous  muscles;
decreased sensory response on the lateral leg and dorsum of  the  foot  (L5)
bilaterally;  normal  gait;  knee  jerk  1+  on  the  right;  normal   motor
strength).  Neurosurgery did  not  attribute  these  objective  findings  to
Waddel  signs.   Additionally,  these  complaints/findings  were  all  long-
standing and well documented in the STR.

The PEB and the VA chose different  coding  for  the  condition,  with  both
codes rating  based  upon  the  General  Rating  Formula  for  Diseases  and
Injuries of the Spine.  Neither coding is predominant.  The  PEB  coded  for
spinal fusion and rated at 10%, noting “mechanically-limited spinal  flexion
at 70 degrees without tenderness or spasm.”  The VA coded  for  degenerative
arthritis of  the  spine  and  rated  at  10%  for  limitation  of  combined
thoracolumbar range of motion to 210 degrees.  The degree of  limitation  of
lumbar spine forward flexion documented at the MEB and  PT  exams  was  very
similar;  however,  the  few  degrees  of  difference  in   the   documented
limitation of back forward flexion results in a different rating.   The  60°
of lumbar spine flexion documented at the MEB exam is  consistent  with  the
20% rating’s “forward flexion of the thoracolumbar  spine  greater  than  30
degrees but not greater than 60 degrees.”  The 70 degrees  of  lumbar  spine
flexion documented at the PT exam meets the 10%  rating’s  “forward  flexion
of the thoracolumbar spine greater than 60 degrees but not greater  than  85
degrees.”  The PEB rated based  upon  mechanically  limited  flexion  of  70
degrees, apparently combining the mechanical limitation of motion  noted  in
the MEB exam with the less restrictive measurement of lumbar  spine  flexion
obtained from the PT examination.  The VA exam documented no  limitation  of
lumbar spine  forward  flexion;  however,  the  combined  lumbar  spine  ROM
documented at the VA exam was consistent  with  the  10%  rating  criteria’s
“combined range of motion  of  the  thoracolumbar  spine  greater  than  120
degrees but not greater than 235 degrees.”  There was  no  documentation  of
physician prescribed  bed  rest  to  justify  a  higher  rating  based  upon
incapacitating episodes.  There was no documentation  of  abnormal  gait  or
abnormal spinal contour to justify a 20% rating  based  upon  severe  muscle
spasm.

The Board weighed the probative value of the disparate lumbar  spine  exams.
The MEB and the PT exams, which had similar findings, both took place  prior
to separation and occurred within four months after surgery.   The  VA  exam
was equally proximate to time of separation, but  took  place  approximately
10 months after surgery.  The more restrictive ROM limitations noted at  the
service exams may have reflected limitations due to post-operative pain  and
inflammation.   The  NARSUM  and  VA   exams   both   indicated   additional
limitations on activities and repeated motion that  may  be  considered  IAW
VASRD §4.40 (functional loss).  The Board considered that the exams were  of
equivalent probative value, reflecting different periods of the  CI’s  post-
operative course and post-separation improvement.

The  Board  additionally  considered  VASRD  §4.7   (the   higher   of   two
evaluations) which advises:  “where there is a question as to which  of  two
evaluations shall be applied, the higher evaluation will be assigned if  the
disability picture more nearly approximates the criteria required  for  that
rating.  Otherwise, the lower rating will be assigned.”   The  Board  opined
that the CI’s overall disability picture, based upon  the  three  exams  and
the STR as well as his lack of endurance, more closely approximates the  20%
rating criteria for the lumbar spine.

Finally, the  Board  noted  that  there  was  insufficient  evidence  of  an
unfitting or ratable peripheral  nerve  impairment.   Although  the  CI  did
complain of  persistent  right  lower  extremity  numbness,  with  objective
documentation  of  decreased  sensation  in  the  L5   distribution,   Board
precedent is that a functional impairment tied to  fitness  is  required  to
support a recommendation for  addition  of  a  peripheral  nerve  rating  at
separation.   The  sensory  component  in  this  case  has   no   functional
implications that were reflected in the  permanent  profile  or  commander’s
statement.   No  motor  impairment  was  recorded  that  can  be  linked  to
significant physical impairment.   Post-separation  VA  exams  proximate  to
separation  did  not  demonstrate  significant  lower  extremity  peripheral
neuropathy (left and right lower  extremity  sensory  deficit/numbness  both
not service connected, no diagnosis in VARD 30 December 2008).  The VARD  of
18 January 2011 rated each lower extremity at 10%  effective  30  July  2010
when a positive  electrophysiologic  study  (EMG/NCV)  demonstrated  sensory
deficit  of  each  lower  extremity.   Since  no  evidence   of   functional
impairment exists in this case, the Board cannot  support  a  recommendation
for additional rating based on nerve impairment.

After due deliberation, considering all  of  the  evidence  and  mindful  of
VASRD §4.3 (reasonable doubt), §4.7 (the higher  of  two  evaluations),  and
§4.40 (functional loss); the Board recommends a  separation  rating  of  20%
for the spinal fusion L4-5 condition,  and  no  unfitting  peripheral  nerve
condition.

Other PEB Conditions.   The  other  conditions  forwarded  by  the  MEB  and
adjudicated as not unfitting by  the  PEB  were  hypercholesterolemia,  left
ankle arthropathy, and chronic PTSD.  The diagnosis of  hypercholesterolemia
is a laboratory abnormality without related  duty  limitations  or  ties  to
fitness.  The CI had a history of left  ankle  injuries  and  underwent  two
prior surgeries on the left ankle (in 1990  and  1996).   Following  surgery
and PT, the CI regained full function without limitations.  Although the  VA
assigned a 10% rating for  this  condition  effective  1  March  1997  –  25
February 2005, the CI was later allowed to  reenlist  with  this  condition.
The conditions of hypercholesterolemia and left ankle arthropathy  were  not
implicated in the  commander’s  statement  or  noted  as  failing  retention
standards.  All were reviewed by the action officer and  considered  by  the
Board.   There  was  no  indication  from  the  record  that  any  of  these
conditions significantly interfered with  satisfactory  performance  of  MOS
duty requirements.  All evidence considered, there is not  reasonable  doubt
in  the  CI’s  favor  supporting  recharacterization  of  the  PEB   fitness
adjudication for any of the stated conditions.

The CI was diagnosed with chronic PTSD  and  depression  in  2006.   He  was
treated  with  anti-depressant  medication  and  group  therapy,   and   was
subsequently placed on an S2 profile.  The MEB examiner noted that the  CI’s
symptoms of anger and depression were relatively well-controlled during  the
MEB period.  Mental health notes during the MEB period  reflected  a  stable
mental health course without mention of duty limitations or  decompensation.
 The VA PTSD C&P exam, three  months  post-separation,  documented  cannabis
abuse for “self medication for pain,” unemployed with difficulty in  school,
separated from his wife and with significantly  worse  symptoms  than  noted
pre-separation.  The Global Assessment  of  Functioning  (GAF)  was  in  the
range of major impairment in  several  areas  (GAF=35:  Service  GAF=55-60).
The examiner also diagnosed major depressive disorder and indicated  the  CI
was at risk of “suicide gestures or attempts based on his  past  history  of
depression.”  The Board adjudged this as post-separation worsening  and  not
indicative of the CI’s condition during the DES process  and  pre-separation
functioning.    The   Board’s   threshold   for   countering   DES   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.  The conditions of chronic  PTSD  and
depression were not implicated in the  commander’s  statement  or  noted  as
failing retention standards.  Both conditions were reviewed  by  the  action
officer and considered by the Board.   There  was  no  indication  from  the
record  that  any  of  these  conditions   significantly   interfered   with
satisfactory performance of MOS duty requirements.  After due  deliberation,
and in consideration of the totality of the evidence, the Board cannot  find
adequate justification for  recommending  the  chronic  PTSD  or  depression
conditions as additionally unfitting for separation rating.

Other Contended Conditions.  The CI’s application asserts  that  compensable
ratings should be considered for hearing loss and neck  problems.   Although
the CI did complain  of  hearing  loss  at  the  MEB  physical,  audiometric
testing on 20 September 2007 demonstrated normal hearing in both ears.   The
VA exam also demonstrated normal pure tone  hearing  and  normal  functional
speech discrimination in both ears.  This  condition  was  reviewed  by  the
action officer and considered by the  Board.   There  was  no  evidence  for
concluding that hearing loss interfered with duty performance  to  a  degree
that could be argued as unfitting.  The condition of neck problems does  not
appear in the DES file and is not mentioned in the  neurosurgical  notes  or
PT notes proximal to separation.  The Board  does  not  have  the  authority
under DoDI 6040.44 to render  fitness  or  rating  recommendations  for  any
conditions not considered by the DES.  The Board determined  therefore  that
none  of  the  additional  contended  conditions  were  subject  to  Service
disability rating.

Remaining Conditions.  The condition of radial nerve inflammation  noted  in
the VARD was included in the DES file  as  left  index  finger  surgery  and
numbness.  This injury occurred in May of 1995 and it  was  assigned  a  20%
rating by the VA from 1 March 1997 – 15 February 2005.   The  condition  did
not prevent the CI from reenlisting in 2005.  Several  additional  non-acute
conditions or medical  complaints  were  also  documented.   None  of  these
conditions were significantly clinically  or  occupationally  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,  the
condition of tinnitus was noted  in  the  VA  rating  decision  proximal  to
separation, but was not documented in the DES  file.   The  Board  does  not
have  the  authority  under  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 spinal fusion (L4-L5) condition, the  Board
unanimously recommends a permanent service disability rating of  20%,  coded
5241 IAW VASRD §4.71a.  In the  matter  of  the  hypercholesterolemia,  left
ankle  arthropathy  and  chronic  PTSD  conditions,  the  Board  unanimously
recommends no change from the PEB adjudications as not  unfitting.   In  the
matter  of  the  hearing  loss  and  (right  index  finger)   radial   nerve
inflammation 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, effective as of the date of his prior medical
separation.

|UNFITTING CONDITION                               |VASRD CODE  |RATING  |
|Spinal Fusion, L4-5                               |5241        |20%     |
|COMBINED    |20%     |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record






                                        President
                                                                    Physical
Disability Board of Review