RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army

CASE NUMBER: PD1100524 SEPARATION DATE: 20080404

BOARD DATE: 20120316

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92F, Petroleum Supply Specialist) medically separated for lumbar degenerative disc disease (DDD). The CI injured his back by a fall from a truck in 2005, and re-injured it during a 2006 deployment to Iraq. He was diagnosed with DDD without neurologic involvement, and without surgical indications. He did not improve adequately with conservative measures 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). Lumbar DDD was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions were submitted by the MEB. Other conditions evidenced in the Disability Evaluation System (DES) file are addressed below. The PEB adjudicated the lumbar condition as unfitting, initially rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy; although, it was subsequently edited to reflect a rating of 20% citing criteria of the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated with a 10% disability rating. In 2009, the PEB’s decision was changed by order of amendment to a rating of 20% to comply with National Defense Authorization Act (NDAA) 2008.

CI CONTENTION: “I feel the a disability rating of 10% that was awarded to me by the army peb was not justifiable based on evidence of my service connected disability's I told the peb counselor that I had a lot more issues and he never done anything to help me other than try to get me out of the service quickly for some reason. Please reevaluate based on Army records and VA Records. Thank You.” He additionally lists all current conditions rated by the VA with their ratings; which include (in addition to those charted below): PTSD [post-traumatic stress disorder], arthritis of the right knee, arthritis of the left knee, bilateral plantar fasciitis, tinnitus, metatarsal fracture, deviated septum, and gastroesophageal reflux disease [GERD]. This is taken as an implied contention for their inclusion in the service disability rating.

RATING COMPARISON:

*As per amendment order of 20090312 (IAW NDAA 2008) which increased an initially conferred PEB rating of 10%.

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 all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board also acknowledges the presence of posttraumatic stress disorder (PTSD) and right knee arthritis as currently rated conditions by the DVA, but notes that the scope of its recommendations does not extend to conditions which were not diagnosed or in evidence at the time of medical separation. This includes conditions which may have had early manifestations during active service, since such sub-clinical conditions cannot be correlated with a fitness determination requisite for a service rating.

Lumbar Spine Condition. After falling from a fuel truck in 2005, the CI continued to report pain throughout his low back and into his buttocks. Magnetic resonance imaging (MRI) from July 2005 showed a minimal disc bulge at L4-5 with no evidence of neural impingement. He was treated with activity restrictions, anti-inflammatories, and physical therapy (PT) with minimal improvement. This notwithstanding, the CI deployed to Iraq in 2006; and, suffered another fall (from a roof doing antenna work) which significantly exacerbated the back pain. He completed the tour, but on redeployment reported constant worsening back pain with bilateral posterior radiation. A repeat MRI in 2007 revealed degenerative changes within the facets and discs at L4-L5 and L5-S1; but, again with no neural encroachment. There were no neurosurgical indications, and the CI failed continued attempts at various conservative modalities and rehabilitation. 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; as summarized in the chart below.

At the MEB exam (five months prior to separation), the CI reported constant moderate pain (7/10) which increased with activity (9/10). He could not stand for prolonged periods, wear battle gear, or tolerate military vehicles. He was prescribed a daily narcotic regimen, at modest doses. By physical exam, there was diffuse mid-line tenderness, a normal gait, and ROMs limited by pain. There was no comment regarding spasm, but contemporary outpatient PT notes consistently documented the absence of spasm. Neurological findings for the lower extremities were normal. At the pre-separation VA Compensation & Pension (C&P) exam two months later, the CI reported similar pain characteristics and physical limitations. The use of a cane was noted by the examiner, although no use of assisted ambulation devices was evidenced in the service file; and, the examiner recorded normal gait and posture. By physical exam, there was mild tenderness and a noted flattening of curvature without comment on spasm. Neurological findings were normal. 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. That PT note documented marked voluntary guarding, an inability to attempt passive measurements; but, paradoxically the absence of spasm. There was no comment on gait or spinal contour.

The Board directs attention to its rating recommendations based on the above evidence. Regarding probative value assignment, the VA C&P evaluation most proximate to separation (and consistent with the preponderance of the MEB evidence) is a logical choice for best reflecting disability at separation. The disparate PT evaluation is a clear outlier, and may have reflected an atypical exacerbation. The PEB and VA both applied VASRD codes analogous to 5242 (degenerative arthritis of the spine), which is rated under the VASRD general spine formula. The recorded ROM’s accurately reflect the 20% rating conferred by the VA and by the service amendment. There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes which would provide for additional or higher rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 20% for the lumbar spine condition.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for PTSD, bilateral knee arthritis, bilateral plantar fasciitis, tinnitus, metatarsal fracture, deviated septum, and GERD. PTSD was not diagnosed in service, although “major trouble sleeping since I deployed to Iraq” was recorded on the MEB physical; and, an intent to seek VA disability for PTSD was recorded on the DD Form 2697 Report of Medical Assessment. The knee issues were noted in 2005 entries in the service treatment record (STR), but did not surface during the MEB period. Plantar fasciitis and tinnitus were identified in the pre-separation VA C&P evaluation, but were not evidenced in the STR. The metatarsal fracture was noted by the MEB examiner as a consequence of the fall in Iraq, but not as an active complaint or issue at the time of the exam. The deviated septum and GERD were noted by the CI on the MEB physical, and the CI was taking medication for GERD at the time of separation. There were no STR entries for active clinical problems with GERD or any of these other conditions during the MEB period. None of these conditions were profiled, 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 evidence for concluding that any of the conditions interfered with duty performance to a degree that could be argued as unfitting. The Board determined therefore that none of the stated conditions were subject to service disability rating.

Remaining Conditions. The insomnia complaint noted above and a prior inguinal hernia were the only additional conditions evidenced in the core DES file. Neither of these conditions were significantly clinically or occupationally active during the MEB period, profiled, or implicated by the commander. These conditions were reviewed by the action officer and considered by the Board; and, it was determined that neither 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. The Board did not surmise from the record or edited PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the amended service adjudication. In the matter of the contended PTSD, bilateral knee arthritis, bilateral plantar fasciitis, tinnitus, metatarsal fracture, deviated septum, and gastroesophageal reflux conditions; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation. 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 amended):

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110719, 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

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD 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

Deputy Assistant Secretary

(Army Review Boards)