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AF | PDBR | CY2012 | PD2012 00920

Original file (PD2012 00920.rtf) Auto-classification: Approved

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: CASE: PD1200920
BRANCH OF SERVICE: Army BOARD DATE: 20130724

Date of SEPARATION: 20030531

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 1LT/O-2 (92A/Quarter Master) medically separated for a bilateral ankle condition and chronic low back condition. He had repeated sprains to both ankles and bilateral ankle pain for several years. The chronic low back pain (LBP) was present for approximately 10 years at the time of separation without history of injury. Neither condition could be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3/L3/S3 profile and referred for a Medical Evaluation Board (MEB). The bilateral ankle and low back conditions, characterized as “mild ankle instability” and “degenerative disc disease of LS Spine, HNP in L4-5,” were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Major depressive disorder (MDD), diabetes mellitus (DM) Type 1, migraine headaches (HAs) and chronic HAs conditions were also forwarded by the MEB as medically unacceptable. The PEB adjudicated the bilateral ankle and low back conditions as unfitting, rated 0% and existed prior to service (EPTS), respectively, referencing the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting and , therefore , were not rated. The CI made no appeals and was medically separated.

CI CONTENTION: “No consideration was given to the long term effects of disease process and adjustment of life I have suffered. Moreover no consideration was given to the quality of life occupational and social impairment that I would suffer since being discharged. For instance, the impact of my back condition on me obtaining and maintaining employment; now at the age of 40 the years I have suffered with the psychological impact of erectile dysfunction; both the physical and psychological effects of the daily struggle of controlling diabetes condition.”

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting bilateral ankle and low back conditions are addressed below. The requested diabetes and (implied) MDD conditions, which were determined to be not unfitting by the PEB, are likewise addressed below. The requested erectile dysfunction condition was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board. The not unfitting headache condition was not contended by the CI and thus is outside the purview of the Board as well. 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 Board for Correction of Military Records.

RATING COMPARISON :

Service IPEB – Dated 20030320	VA - (3 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Bilateral Ankle Pain	5099-5003	0%	Left Ankle Sprain	5271	0%	20030827
			Right Ankle Sprain	5271	0%	20030827
Chronic Low Back Pain	5293, 5299-5295	EPTS	DDD Lumbar Spine	5293-5292	20%*	20030827
MDD	Not Unfitting	Dysthymic Disorder w/ MDD	9433	30%**	20030827
Diabetes Mellitus, Type I	Not Unfitting	Diabetes Mellitus	7913	20%	20030827
Migraine HAs w/out Aura	Not Unfitting	Migraine HAs (claimed as Chronic HAs)	8100	30%	20030827
Chronic Headaches	Not Unfitting
No Additional MEB/PEB Entries	Other x 11	20030827
Combined: 0%	Combined: 90%

Derived from VA Rating Decision (VA RD ) dated 200 4 1228 ( most proximate to date of separation [ DOS ] with C&P exams ). There was an original VARD dated 20040621 with the same ratings; however, the ratings were determined by the STR’s and not C&P exams.
* The DDD spine condition rating goes up to 100% effective 20081223 and then back down to 40% effective 20090301.
** The Dysthymic Disorder rating goes up to 50% effective 20040608.

ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, it must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate 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, operating under a different set of laws.

Bilateral Ankle Condition. The CI initially injured his right ankle in 1993 while enlisted. He was treated conservatively and apparently fully recovered. No problems were noted on his “Chapter” discharge examination in September 1994. The VA based the 2 March 1995 rating decision on his service treatment records and denied service-connection for right foot problems as there was no permanent disability recorded. The CI returned to the Army as an officer on 19 May 2000. He was seen on 7 August 2000 for a left ankle sprain for which he was treated conservatively, but he had recurrent sprains. He was seen in orthopedics on 27 June 2001 and given a brace; however, he continued to have recurrent sprains. He was seen in May 2002 for a right ankle sprain and, again, treated conservatively. At an orthopedic appointment on 29 July 2002, it was determined that an MEB should be initiated. Bilateral ankle X-rays performed that day were normal. Magnetic resonance imaging (MRI) studies were obtained on 25 August 2002. The right ankle had thickening of the anterior talofibular ligament consistent with the prior sprains. The other ligaments were intact. The left ankle was remarkable for a multi-partite accessory navicular bone and Achilles tendinosis with a possible intra-articular loose body. At a podiatry evaluation on 17 December 2002, he was noted to have positive anterior drawers tests and talar tilt bilaterally. The narrative summary (NARSUM) was dictated by an orthopedic surgeon on 24 January 2003, 4 months prior to separation. The CI reported that both ankles gave way. The examiner noted a slightly antalgic gait, but normal heel and toe walk. He was noted to have full range-of-motion (ROM) without tenderness or soft tissue swelling. The drawer’s tests were negative bilaterally. He was assessed as having mild ankle instability. At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported that he had decreased ability to stand or walk during flares of his ankle pain which occurred several times a week. On examination, his gait was normal. The general appearance of the ankles was normal and the ROM was normal in all planes without pain. DeLuca criteria were negative. X-rays were normal. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 20030531

Ankle ROM (Degrees)	MEB ~ 4 Mo. Pre-Sep	VA C&P ~ 3 Mo. Post-Sep
	Left	Right	Left	Right
Dorsiflexion (20 Normal)	10	10	20	20
Plantar Flexion (45)	50	50	45	45
Comment	“Full ROM”	No pain, fatigue or weakness
§4.71a Rating	0%	0%	0%	0%

The Board direct s attenti on to its rating recommendation based on the above evidence . The VA coded each ankle as 5271 and rated each at 0%. The PEB coded the ankles as analogous to degenerative arthritis, 5099-5003, and also rated them at 0% (combined). The Board noted that while the MRI showed evidence of old trauma, the X -rays were normal, there was no instability noted on either the MEB or C&P examination, the appearance was normal and the ROM normal and painless. The gait was noted as normal on the VA examination. The examinations showed continued improvement from the December 2002 examination, through the MEB and then the C&P examinations. The Board considered the various coding options and found no route to a higher rating than the 0% awarded by both the PEB and the VA. The Board considered that, while the ankles could be determined to be separately unfitting, this would provide no benefit to the CI for rating purposes. After due deliberation, considering all of the evidence and mindful of Veterans Affairs Schedule for Rating Disabilities ( VASRD ) §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left and right ankle conditions .

Low Back Condition. The CI first noted an injury to his lower back in 1991 after lifting heavy objects on two separate occasions. There were no further entries for LBP in the record prior to his separation in 1994. However, the “Chapter” physical noted that the CI complained of pain from his right hip down the leg to his heel on the right and the straight leg raise (SLR) was positive at 50 degrees. The VA did not award service-connection for a back condition other than for an unrelated lipoma. The CI again sought medical care for his back in September 1999 noting pain after jumping into a ditch the previous July, but also a history of LBP for 10 years. He was apparently treated with medications and physical therapy (PT) per an MRI entry on 22 December 2000, 7 months after entry onto active duty. These records are not in evidence. At the MRI, he was found to have multi-level degenerative disc disease (DDD) with a bulge/protrusion at L4-5 and a bulge at L5-S1. An epidural steroid injection (ESI) provided partial relief of his pain. A second MRI was accomplished on 15 August 2001. The CI had disc bulging at L3-4, L4-5, and L5-S1 with herniation at L4-5. At an orthopedic appointment 5 days later, he had a normal examination and was returned to full duty. At a PT evaluation on 1 February 2002, he had full ROM, but with pain. He then underwent a series of three ESIs without resolution of his pain. The NARSUM noted that the CI had bilateral radicular pain, but without paresthesias or weakness. There was neither bowel nor bladder dysfunction. The gait was antalgic, but heel and toe walk normal. The paravertebral muscles were tender and spasm was suspected. The neurological examination was normal and the SLRs negative bilaterally. No comment was made on the ROM. A third MRI on 1 April 2003 showed progression of the disc disease at both L4-5 and L5-S1. The CI was evaluated in neurosurgery (NS) 2 weeks later on 16 April 2002 and again on 30 April 2002, a month prior to separation. He was noted to have a normal neurological examination with full ROM. The gait was antalgic, favoring the left. Spasm was not documented. A left paracentral herniated disc pulposus (HNP) was noted at L4-5 and a right paracentral HNP at L5-S1. The latter was more significant on the MRI, but the former more symptomatic. These findings were confirmed on a lumbar CT scan. At the follow-up NS appointment, the CI elected to continue conservative management. At the C&P exam performed 3 months after separation, the CI reported pain and stiffness when he lied down and when he stood or walked for any period of time. The pain radiated to both hips and down the legs. His gait and posture were normal. Muscle spasm was present on the right. The SLR was positive bilaterally and there was tenderness to palpation in the lumbar spine. There were no signs of radiculopathy or intervertebral disc syndrome. The ROM was limited by pain, primarily in flexion. The CI could side bend greater than VA norms bilaterally. There were no DeLuca criteria. The neurological examination was normal. The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 200 30531

Thoracolumbar ROM (Degrees)	PT ~15 Mo. Pre-Sep (20020201) p. 479	NS ~ 1 Mo. Pre-Sep (20030416 ) p. 72 3	VA C&P ~ 3 Mo. Post-Sep (20030827) p. 44	VA C&P ~ 16 Mo. Post-Sep (20040915) p. 274
Flexion (90 Normal)	Full w/o incr SX	Full	45 (pain at 40)	40
Extension (30)	Full w/o incr SX		25	10
R Lat Flexion (30)	eases SX		30 35	15
L Lat Flexion (30)	Incr SX		30 35	15
R Rotation (30)	deferred		30	#
L Rotation (30)	deferred		30	#
Combined (240)	--	--	190	#
Comment		Slightly antalgic gait;	ROM limited by pain	Toe and heel walk normal
§4.71a Rating	0 %	0 %	20 %	20 %

The Board first considered the EPTS determination by the PEB for the LBP condition. The Board noted that the CI consistently described the onset of the LBP as 1991 when a date of onset was given other than “ten years ago.” The action officer opined that the two recorded episodes of LBP in 1991 were after lifting and without evidence of continued pain afterwards; these were thought to be less likely than not to have been the proximate cause of the DDD noted after reactivation in May 2000. The 13 September 1994 “Chapter” examination noted right hip pain radiating to his heel with a SLR positive at 50 degrees. The examiner noted questionable radicular symptoms and recommended further evaluation. The records then fall silent until the CI was seen in 1999 for LBP after jumping into a ditch 2 months earlier. The CI was in ROTC and it is not clear if the injury was duty related from the records in evidence. The commissioning/accession history and physical is not in evidence. The 21 December 2000 MRI did note that the LBP had been present since 1991 in the history and showed significant DDD. No record of trauma between the periods of active service is in evidence other than the single entry in 1999 for which the CI was not seen for 2 months. While the evidence available for review is scant, the preponderance indicates that the CI had the onset of his LBP prior to activation in May 2000. The Board determined that the EPTS adjudication by the PEB is supported. The Board then considered if there was service aggravation. While it is clear that there was evidence of significant DDD at the initial MRI performed only 7 months after activation, the Board presumes that the CI was able to meet duty and fitness standards for at least the initial period of active service given the absence of records to the contrary. The Board determined that this supports a finding of permanent service aggravation IAW VASRD §4.3 (reasonable doubt).

The Board directs attention to its rating recommendation based on the above evidence. The VA awarded 20% disability, coded 5293-5292, based on the C&P examination. The Board noted that the NS examination was more proximate to the date of separation than the VA examination and also that it was performed by a neurosurgeon. There is no history of trauma to account for the marked decrease in flexion noted on the C&P examination. The neurological examination was normal as was the ROM at the NS examination. The gait was antalgic, though. The Board noted that the C&P examination, which showed a reduction in flexion, also recorded normal gait and posture; these seem to be inconsistent. Accordingly, the Board assigned a higher probative value to the NS examination. The MRI clearly showed DDD at multiple levels. The Board considered the various coding options. Without evidence of significant limitation of ROM or incapacitating episodes, the Board found no route to a higher rating than 10% under code 5295, lumbosacral strain for painful motion.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the MDD and DM conditions were not unfitting. The Board’s threshold for countering 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. Both conditions were profiled and judged to fail retention standards. However, the commander’s statement noted that he “cannot walk long distances or stand prolonged periods in full battle gear.” This statement addresses the ankle and back conditions. The Board first considered the MDD condition. On 21 June 2002, the CI was evaluated after a command referral. His chief complaint was “I went down to the IG to make a formal complaint against my commander.” He stated that he had work related problems since March of that year and reported disturbances in sleep and appetite with hopelessness. He also reported some conflict within his family regarding child care and finances. He was noted to have mood disturbances related to occupational conflict and family issues. He was next seen a week later and reported that he had a recent poor evaluation and had been concerned that he would be court martialed. The Board noted that the evaluation stated “K-- has been formally counseled on multiple occasions during this period for failing to be where he should be and for not following up on actions. Performing well when given explicit guidance and supervision…” The senior rater wrote “LT W--- has very limited potential to continue to serve as an officer.” He was subsequently diagnosed with MDD, single episode, occupationally related. The CI sought treatment with USN mental health providers expressing concern with his chain of command. At a mental health evaluation on 20 August 2002, it was noted that he continued to have significant work related problems, but was fit to return to work in his current duty status. The MEB mental health evaluation on 30 January 2003 noted that the CI continued to have problems with his chain of command and that these significantly contributed to his symptoms. It was thought that it was unlikely that he would be able to return to full duty. His impairment for military duties was thought to be severe. His impairment for civilian occupations was mild to moderate. His Global Assessment of Function was assessed at 70, consistent with some mild symptoms, but generally functioning well. He was given a S3 profile, but, as noted, his commander did not comment on the CI’s mental health issues in the commander’s statement. The MEB determined the MDD to be medically unacceptable. The PEB determined it to be not unfitting and not ratable.

The Board considered the evidence. It seems clear from the timeline that the CI had no mental health issues until he began to have occupational problems at work which do not appear to be related to the unfitting conditions, his ankles and LBP, for which he was entered into the MEB process. The Board noted that at the 2006 C&P examination, the CI did not endorse any depressive symptoms until prompted by the examiner and that he was not receiving any treatment. He was diagnosed with a dysthymic disorder with a MDD as well as Cluster B traits under Axis II. The Board then considered the DM condition. The CI was first diagnosed with DM in August 2002; a 6 September 2002 note documents good control on Metformin, an oral hypo-glycemic. He initially enjoyed good control with lifestyle modifications and the Metformin, but subsequently had problems with both medication and dietary compliance. He developed problems with polyuria, polydipsia, blurred vision, and fatigue, but did not become ketotic. Insulin was initiated due to very high blood sugars. An HA1C (hemoglobin A1C, a measurement of chronic levels of blood sugar) was slightly elevated in August at 6.8, very high at 12.0 in December, and back to 8.4 in January showing improved control. An internal medicine addendum for the MEB was dictated on 23 January 2003. It noted that his follow-up had been affected by his situation at work. He was now compliant with both medications and diet with resolution of his symptoms. It was noted that he was non-deployable due to the requirement for both specialty care and refrigeration for the insulin. An optometry examination on 11 February 2003 showed no diabetic retinopathy. At the C&P examination, his blood sugar was high. No sequelae from the DM condition were discovered on the examination. He was noted to weigh 235 pounds, 63 pounds heavier than at his 1993 “Chapter” discharge physical (there is no recorded weight on the 1994 “Chapter” examination.) The 2006 C&P noted that he was not treating the DM condition by medications or diet. His examination was normal other than an elevated random blood sugar consistent with untreated DM. Both conditions were reviewed by the action officer and considered by the Board. The MDD appeared to be a reaction to problems at work rather than causing the problems at work. The DM condition was well controlled initially on oral hypoglycemic and dietary modifications. Insulin was addended to hyperglycemia due, at least in part, to poor medical and dietary compliance. Poor compliance continued to be an issue after separation based on the VA records. The preponderance of the evidence from the record does not support that either of these conditions would have significantly interfered with satisfactory duty performance once the occupational stressors were resolved for the MDD and the CI compliant with treatment for the DM condition. After due deliberation in consideration of the, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the either the MDD or the DM contended conditions and so no additional disability ratings are recommended.

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 ankles was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the LBP condition, the Board, by a 2:1 vote, recommends a disability rating of 10%, coded 5295 IAW VASRD §4.71a. The single voter for dissent (who recommended a 20% rating) did not elect to submit a minority opinion. In the matter of the bilateral ankle conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended MDD and DM conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING
Bilateral Ankle Pain	5099-5003	0%
Chronic Low Back Pain	5295	10%
COMBINED (w/ BLF)	10%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120612, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130018095 (PD201200920)

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 rating to 10% without recharacterization 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
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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AF | PDBR | CY2012 | PD2012 00920

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