RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                                      BRANCH OF SERVICE:  Army
CASE NUMBER:   PD1100762                                          SEPARATION
DATE:  20031002
BOARD DATE:  20120215


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was an active duty SGT/E-5  (11B,
Infantryman), medically  separated  for  lumbar  degenerative  disc  disease
(DDD)  with  low  back  pain  (LBP).   He  did  not  respond  adequately  to
conservative and surgical treatments and he was  unable  to  perform  within
his  Military  Occupational  Specialty  (MOS)  or  meet   physical   fitness
standards.  He was issued a permanent L3 profile  and  underwent  a  Medical
Evaluation Board (MEB).  Lumbar degenerative disc  disease  (DDD)  with  low
back  pain  were  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  lumbar  DDD
with LBP condition as unfitting, rated 10%; with  specified  application  of
DoDI 1332.39 and AR 635-40.  The CI  made  no  appeals,  and  was  medically
separated with a 10% disability rating.


CI CONTENTION:  The CI states:  “Corresponding rating determined by  the  VA
immediately following separation is greater  for  the  specific  injury  and
including other health issues was  found  to  be  90%  following  separation
(first time determination with no appeals found  in  approx  six  months  of
separation).  I now receive VA Individual Unemployability  at  100%  due  to
the same conditions of the PEB as well.  At the time I would  have  disputed
it, as I was under the impression they simply wanted  to  pay  me  severance
and get me on down the  road,  but  I  was  not  in  a  good  place  neither
physically, mentally, or emotionally at the time, so I just let  it  go.   I
had a great concern about my long term care and well being, as I knew  other
problems existed outside of the spine issue which I saw the  PEB  for.   The
VA stepped up and has taken great care of me and done the  best  I  am  sure
they can.  I was in perfect health at 17 when I joined, I worked hard,  went
to Ranger Regiment and Ranger School and did all I  could  day  in  and  day
out.  My health suffered while in  service  and  has  continued  to  decline
since.  I am not complaining and am very proud of what I have done, but  any
help would be great.  I am now married, so this change would lift  a  burden
from my wife, and myself.  I would have alternative care  if  I  chose,  and
would be given the opportunity to have some other money saving benefits.   I
appreciate your consideration, and feel with a simple look at  documentation
from the VA findings I should be a candidate for  medical  retirement.”   He
elaborates no specific contentions regarding rating or coding  and  mentions
no additionally contended conditions.


RATING COMPARISON:

|Service IPEB – Dated 20030813  |VA (6 Mo. After Separation) – All       |
|                               |Effective Date 20031003                 |
|Condition       |Code          |Rating                                  |
|Gastroesophageal Reflux Disease|Not Unfitting                   |GERD,  |
|(GERD)                         |                                |Hiatal |
|                               |                                |Hernia,|
|                               |                                |Duodeni|
|                               |                                |tis, & |
|                               |                                |Gastrit|
|                               |                                |is     |
|Combined:  10%                 |Combined:  90%                          |


VA rating based on exam most proximate to date of permanent separation.


ANALYSIS SUMMARY:   The  Military  Services,  by  law,  can  only  rate  and
compensate for those conditions that  were  found  unfitting  for  continued
military service based on the severity of  the  condition  at  the  time  of
separation  and  not  based  on  possible  future  changes.   However,   the
Department of Veterans’ Affairs (DVA), operating under a  different  set  of
laws, can rate  and  compensate  all  service-connected  conditions  without
regard  to  their  impact  on  performance  of  military  duties,  including
conditions developing after separation that are direct  complications  of  a
service-connected condition.  The DVA can also increase or decrease  ratings
based on the changing severity of each condition  over  time.   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, as well as the fairness of PEB fitness adjudications at the  time
of  separation.   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.

In this case, the PEB rating  determination  was  based  on  the  old  spine
rules, whereas the date of separation occurred  after  the  promulgation  of
the new spine rules effective September 26, 2003.   This  was  reflected  in
the coding differences between the PEB and  VA.   The  early  2003  Veterans
Administration Schedule for Rating Disabilities (VASRD)  coding  and  rating
standards  for  the  spine,  which  were  in  effect  at  the  time  of  PEB
adjudication, were changed to the current  §4.71a  rating  standards  on  26
September 2003.

Low Back  Condition.   There  were  two  goniometric  range-of-motion  (ROM)
evaluations in evidence, with documentation of additional ratable  criteria,
which the Board weighed in arriving at its rating recommendation.

|Goniometric   |MEB ~ 2 Mo.    |VA C&P ~ 6 Mo. After-Sep                |
|ROM -         |Pre-Sep        |(20040428)                              |
|Thoracolumbar |(20030801)     |                                        |
|Flex (0-90)   |90⁰            |80⁰                                     |
|Ext (0-30)    |20⁰            |20⁰                                     |
|R Lat Flex    |Not measured   |30⁰                                     |
|(0-30)        |               |                                        |
|L Lat Flex    |Not measured   |30⁰                                     |
|0-30)         |               |                                        |
|R Rotation    |Not measured   |20⁰                                     |
|(0-30)        |               |                                        |
|L Rotation    |Not measured   |20⁰                                     |
|(0-30)        |               |                                        |
|COMBINED (240)|Incomplete     |200⁰                                    |
|Comment       |Tender to      |“Straightening of the normal lumbar     |
|              |palpation;     |curvature;” discomfort at all extremes  |
|              |normal motor,  |of motion; gait normal (incl heel- and  |
|              |sensory,       |toe-walk);  SLR elicited discomfort at  |
|              |reflexes and   |45° bilaterally, “but no radicular      |
|              |gait (incl     |symptoms;” Patrick test elicited lumbar |
|              |heel- and      |discomfort at the extreme bilaterally;  |
|              |toe-walk);     |negative Lasegue and Hoover tests; Lower|
|              |Negative SLR   |extremity ROM was intact; normal motor, |
|              |and Waddel’s   |sensory, and reflexes; no spasm or      |
|              |signs          |objective evidence of lower extremity   |
|              |               |radiculopathy.                          |
|              |               |Hx cane, back brace and radiculopathy   |
|§4.71a Rating |10%            |10%-20% (VA 20%)                        |
|(New)         |               |                                        |

The CI’s back problems started after a  “bad”  parachute  jump  in  2000  or
2001.  Orthopedics diagnosed lumbar DDD,  after  exacerbation  neuropsurgery
performed a discogram and IDET (intraDiscal electrothermal) treatment  which
provided substantial relief until 2002.  At that time, the  CI  was  treated
with nerve blocks, injections and caudal  decompressive  neurolopasty,  none
of which provided sufficient relief of symptoms  to  return  to  normal  MOS
duties.  The CI was diagnosed and  treated  for  right  L4-5  radiculopathy;
symptoms were primarily pain with no motor  loss,  or  fixed  sensory  loss.
There were no electrophysiologic (EMG/NCV) studies documented.   Lumbar  MRI
showed L4-5/L4-S1  DDD  with  minimal  neural  compression.   The  narrative
summary (NARSUM) examination,  two  months  pre-separation,  showed  limited
lumbar  extension  with  no  spine  tenderness  (however,   tenderness   was
documented on the DD Form 2808 exam); no gait disturbance, no spine  contour
changes, no tenderness and no muscle spasm.

The VA Compensation and Pension (C&P) exam,  six  months  after  separation,
indicated straightening of  normal  lumbar  curve,  tenderness  in  the  mid
lumbar region with  no  spasm  and  no  tenderness  to  sciatic  notch  deep
palpation  bilaterally.   Gait  and  heel/toes  walk  was  normal  with   no
radicular signs and symptoms on exam.  VA exam very remote from  separation,
in 2010, indicated guarding with abnormal gait and forward  flexion  limited
to 40°; this was adjudged as post-separation worsening  and  not  indicative
of the CI’s condition at separation.

There was evidence of approximately five  days  of  incapacitating  episodes
(including hospitalization and ER visit) IAW VASRD  §4.71a  for  alternative
rating under the old VASRD 5293, Intervertebral disc  syndrome  criteria  or
the new 5243 formula  for  rating  intervertebral  disc  syndrome  based  on
incapacitating episodes; this would rate at no higher than  10%  analogously
to “with incapacitating episodes having a total duration  of  at  least  one
week but less than two weeks during the past 12 months.”

The MEB exam was consistent with §4.71a  standards  for  a  10%  rating  as:
slight limitation of motion under 5292  (Spine,  limitation  of  motion  of,
lumbar), or under 5295 (lumbosacral strain; characteristic pain  on  motion)
under  the  old  spine  rules;  or  IAW  the  new  spine  rules  under  5237
(lumbosacral strain, combined ROM of the thoracolumbar  spine  greater  than
120 degrees but not greater than 235 degrees; or  localized  tenderness  not
resulting in abnormal gait or abnormal spinal contour).   The  VA  exam  was
more remote from the  date  of  separation,  and  although  there  was  more
detailed ROM measurements, the ROMs were in the same range as the MEB  exam.
 The single possible difference for rating was  the  “straightening  of  the
normal  lumbar  curvature.”   There  was  no  muscle  spasm  or   documented
guarding.  The VA rated  this  exam  at  20%;  likely  for  abnormal  spinal
contour due to guarding.  Guarding was not specified and would  have  to  be
inferred from the pain at extremes of motion.  The Board considered the  MEB
exam as having higher probative value for rating at separation.

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 pain component of a radiculopathy  is  subsumed  under  the
general spine rating as specified in §4.71a.  The sensory component in  this
case had no functional implications.  There was no motor impairment and  the
non-pain component cannot be  linked  to  significant  physical  impairment.
Since no evidence of functional impairment exists in this  case,  the  Board
cannot support a recommendation for additional rating  based  on  peripheral
nerve impairment.

After due deliberation in consideration of the  totality  of  the  evidence,
the Board concluded that there is no unfitting peripheral  nerve  impairment
for separation rating and no VASRD basis for recommending  a  higher  rating
than the 10% conferred by the PEB in this case.  The Board does recommend  a
code  change  to  5237  to  maintain  compliance  with  the   DoDI   6040.44
requirement for strict adherence to the VASRD in effect at separation.

Other PEB Conditions.   The  other  conditions  forwarded  by  the  MEB  and
adjudicated as not unfitting by the  PEB  were  headaches,  gastroesophageal
reflux  and  microcytosis.   None  of  these  conditions  were   permanently
profiled or noted as failing retention standards.  Of these conditions,  the
commander’s  statement  implicated  only  headaches  due   to   back   pain.
Headaches, although not noted in the NARSUM, were described by the  examiner
on the DD Form 2807-1 as: frontal HA daily  treated  with  oral  medications
which resolves; and “one/week bad, never left work, incapacitating.”   There
were no emergency  department  visits,  hospitalizations,  or  diagnosis  of
migraine headaches  noted  in  the  service  record.   The  MEB  stated  the
headaches were medically acceptable and the  PEB  adjudicated  headaches  as
not unfitting.  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  duty  performance.
All evidence considered, there is not a preponderance  of  evidence  in  the
CI’s favor supporting recharacterization of  the  PEB  fitness  adjudication
for any of the stated conditions.

Other Conditions.  During service, the CI  was  diagnosed  and  treated  for
obstructive sleep apnea (OSA) treated  with  a  breathing  machine  (CPAP-VA
50%) and for hyperhidrosis (VA 30%).  The OSA  condition  was  diagnosed  in
2003 shortly prior to separation and  subsequent  treatment  with  CPAP  was
successful.  The services do not routinely find OSA, with  or  without  CPAP
requirement,  unfitting  if  symptoms  are  controlled  and  functioning  is
unimpaired.   The  burden  of  providing  CPAP  in  field   and   deployment
environments is not considered to be  a  critical  factor  with  the  common
availability of portable generators and sanitary facilities.   Hyperhidrosis
was noted on  the  DD  Form  2808.   These  conditions  were  not  profiled,
implicated in the  commander’s  statement  or  noted  as  failing  retention
standards.  They were reviewed by the action officer and considered  by  the
Board.  There was no indication from the record that  OSA  or  hyperhidrosis
significantly interfered with satisfactory performance of MOS  requirements.
 All evidence considered, there is not reasonable doubt in  the  CI’s  favor
supporting addition of the OSA  or  hyperhidrosis  conditions  as  unfitting
conditions for separation rating.

Remaining Conditions.  Other conditions identified  in  the  DES  file  were
tonsillar abcess, dyspnea on exertion, stomach  ulcers,  sleep  disturbance,
and left knee/shoulder edema.  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 prostatitis  (also
claimed as urinary tract infection  and  enlarged  prostate)  [VA  20%]  was
noted in the VA rating 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.  As discussed  above,  PEB  reliance  on  DoDI
1332.39 for rating the back condition was  operant  in  this  case  and  the
condition was adjudicated independently of that instruction  by  the  Board.
In the matter of the chronic low back pain and IAW VASRD  §4.71a  in  effect
at the date of separation, the Board unanimously  recommends  no  change  in
the PEB rating of 10%, but a change in VASRD code to 5237 to conform to  the
VASRD in effect at the time of separation.  In the matter of headache,  GERD
and microcytosis conditions, the  Board  unanimously  recommends  no  change
from the PEB adjudications as not unfitting.  In  the  matter  of  the  OSA,
hyperhidrosis, peripheral nerve  impairment  (radiculopathy)  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  |
|Chronic Low Back Pain                           |5237        |10%     |
|COMBINED    |10%     |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110823, 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.  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  to
modify the individual’s disability description without modification  of  the
combined rating  or  2recharacterization  of  the  individual’s  separation.
This decision is final.

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.

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)