Search Decisions

Decision Text

AF | PDBR | CY2012 | PD2012 01622
Original file (PD2012 01622.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXX   CASE: PD1201622
BRANCH OF SERVICE: Army  BOARD DATE: 20130709
SEPARATION DATE: 20060916


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army National Guard SGT/E-5 (21B2P/Combat Engineer) on a temporary tour of active duty, who was medically separated for chronic low back pain (LBP), chronic neck pain and chronic bilateral foot pain conditions. The CI‘s LBP and bilateral foot pain began while deployed to Iraq in 2003. Treatment was delayed, which aggravated these conditions due to high operations tempo of his unit. Upon redeployment, he was diagnosed with pes planus and fitted with orthotics. He again deployed in 2005 and developed neck pain. Once again treatment was delayed and the back and bilateral foot condition were aggravated during the second deployment. After redeployment, physical therapy (PT) was provided. The CI’s conditions could not be adequately rehabilitated with conservative treatment to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3/U3/L3 profile and referred for a Medical Evaluation Board (MEB). The low back, neck and bilateral foot pain conditions, characterized as degenerative disk disease (DDD) of the lumbar spine, cervicalgia, symptomatic pes planus and Stage 1 posterior tibial tendon dysfunction, and moderate to severe obstructive sleep apnea (OSA) conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. An Axis I diagnosis of depressive disorder, characterized as meets retention standards was also forwarded. The PEB adjudicated chronic radiating LBP, chronic neck pain and chronic bilateral foot pain conditions” as unfitting. The low back and neck conditions were each rated 0% and the foot condition while unfitting was determined to have existed prior to service (EPTS) without permanent service aggravation (PSA) and was not rated. The OSA and depressive disorder conditions were both considered by the PEB and determined to be not unfitting and therefore not ratable. The CI made no appeals and was medically separated.


CI CONTENTION: The CI elaborated no specific contention in his application.


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 rating for the unfitting back, neck and bilateral foot pain conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 (BCMR).



RATING COMPARISON :

Service IPEB – Dated 20060916
VA - (5 Mos. Post-Separation)
Condition
Code Rating Condition Code Rating Exam
Low Back Pain 5299-5237 0% Lumbar Strain 5237 0%* 20070130
Neck pain 5299-5237 0% Cervical Strain 5237 0%** 20070130
Bilateral Foot Pain 5299-5276 ---% Bilateral Pes Planus 5299-5284 10% 20070130
Moderate to Severe OSA Not Unfitting Sleep Apnea 6847 50% 20070130
Depressive Disorder Not Unfitting PTSD 9411 30% 20070130
No Additional MEB/PEB Entries
Other x 3 20070130
Combined: 0%
Combined: 70%
*Increased to 20% eff ective 20070430 based on C&P exam 20070705
**I ncreased to 30% eff ective 20070516 based on ST R and C&P 20070705


ANALYSIS SUMMARY: The Board uses VA evidence proximal to separation in arriving at its recommendations. DoDI 6040.44 prescribes a 12-month interval for special consideration of post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Low Back Pain Condition. The narrative summary (NARSUM) dated 7 June 2006 notes the CI began to have atraumatic LBP during his first Operation Iraqi Freedom tour in 2003 . This was further aggravated with his second tour to Iraq in 2005 . B etween tours he was treated conservatively and received a retention physical exam in November 2004 which documented no active profiles and a stable LBP condition. His body habitus at the time of this physical was 5   foot 7 inches and a weight of 233 pounds. At the time of the NARSUM h e reported chronic , constant dull ache with a sharp , stabbing, shooting pain at the central lower lumbar spinal region and on the left side of the mid dle of his back, with an intensity of 8 - 9 of 10 on a pain scale. It was aggravated with running, jumping or impact activity, repetitive bending, the wearing of body armor or rucksack, sitting for greater than 20 minutes without a chance to stand or stretch, sit-ups, flutter kicks, li ftin g of greater than 40 pounds and riding in tactical vehicles. It was alleviated with rest, medications, ice application or the elevation of his lower extremities. He reported taking the narcotic based medication Oxycodone as necessary , averaging 6-8 pills per week. The LBP ha d worsen ed since its onset and there was no indication for surgery . The physical profile identified the low back and corroborated the above limitations. The NARSUM cited a physical exam on 27 Mar ch 2006 , which was not in evidence for review. This exam documented no tenderness to palpation (TTP) throughout the spinous or paraspinal region, with no step off , deviations and no spasm noted in the paravertebral musculature as well as negative Waddell signs . The CI had full active range - of - motion (ROM) throughout the thoracolumbar vertebrae. There was a positive left straight leg raise (SLR) to 80 degrees (provocative testing for disc disease) , negative right SLR , decreased sensation to light touch in the left lower extremity and otherwise the remainder of the neurologic signs with respect to reflexes and motor strength of the lower extremities were bilaterally normal . He was able to heel and toe-walk but had great difficulty doing so with his left foot . Lumbar spine X-rays revealed sacralization of L5 / 4 lumbar vertebra and minimal loss of height of T11. Magnetic r esonance i maging ( MRI ) of the lumbar spine revealed probable exiting left L5 neural compromise and possible left transiting S1 neural compromise at the L5-S1 disk level. Electromyogram of the left lower extremity was preformed after this study and was normal. Th e CI was then seen by neurosurgery a nd was diagnosed with DDD of the lumbar spine . The service treatment record (STR) documented extensively that the CI recreationally participated in powerlifting , up to 350 pounds, despite his condition . He continued this hobby despite medical advice not to on multiple occasions in view of his back condition .

At the VA Compensation and Pension (C&P) exam performed 5 months after separation, the CI reported stiffness in the morning, some weakness; and, that treatment was bed rest, narcotic medications (both Methadone and Oxycodone), injections, heat and ice. He did not report incapacitations. The C&P exam additionally documented normal curvature of the spine, no evidence of radiating pain on movement, negative bilateral SLR, and no Deluca observations. X-ray findings of the lumbar spine were within normal limits. The examiner diagnosed DDD of the lumbar spine.

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.

Thoracolumbar ROM
(Degrees)
MEB ~ 3 Mo. Pre-Sep VA C&P ~ 5 Mo. Post-Sep
VA C&P ~ 12 Mo. Post-Sep
Flexion (90 Normal) Full 90 pain occurs 80
Extension (30) Full 30 pain occurs 10
R Lat Flexion (30) Full 30 20
L Lat Flexion (30) Full 30 20
R Rotation (30) Full 30 20
L Rotation (30) Full 30 20
Combined (240) Full 240 170
Comment Silent to painful motion Without radiating pain Painful motion,
+Deluca by 10 degrees
§4.71a Rating 0% 0% vs. 1 0% * 10%
*IAW 4.59 painful motion

The Board directs attention to its rating recommendation based on the above evidence, including consideration of Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.40 (functional loss), §4.45 (DeLuca criteria), and §4.59 (painful motion). The PEB and VA chose the same coding option for the condition and both assigned a non-compensable rating of 0% IAW §4.71aschedule of ratings–musculoskeletal system, based on full ROM and the absence of radiating pain. The Board deliberated whether a 10% rating IAW VASRD §4.59 was warranted since the VA examiner documented that pain occurred at 90 degrees. The Board concluded based on totality of the evidence, to include the absence of documentation of painful motion on the MEB exam prior to separation, the CI’s ability to powerlift up to 350 pounds and his continued persistence in powerlifting despite medical advice to the contrary, that the LBP condition did not rise to the level of criteria for a 10% rating. The Board considered rating under diagnostic code 5243 (intervertebral disc syndrome) and agreed the evidence does not support this in the absence of incapacitating episodes. There was no evidence of ratable peripheral nerve impairment 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition.

Neck Pain Condition. The NARSUM documented the CI developed atraumatic chronic posterior cervical spine pain and associated headaches while on extended combat operations. At the MEB exam, the CI reported chronic, constant, dull and achy pain at the posterior aspect, lower half of his cervical spine rated at a 5-7 of 10 in intensity on a pain scale. The pain was aggravated by the wearing of a Kevlar helmet, body armor, rucksack, sit-ups and shrugs or overhead weightlifting maneuvers. It was alleviated with rest, popping of his neck with side to side movement or ice application. There was no mention of a surgical option for treatment. The profile identified the condition and corroborated his reported limitations. The MEB physical exam demonstrated full active ROM, no TTP of either of the spinous processes, no step-offs or deviations and no edema, erythema, or ecchymosis. MRI of the cervical spine was essentially a normal study, with slight straining of the alignment suggesting spasm. The examiner diagnosed cervicalgia (neck pain). At the C&P exam performed 5 months after separation, the CI reported incapacitating episodes as often as 2 times per year, which lasted for 3 days. His pain was alleviated with bed rest and the above mentioned narcotic medications. The C&P exam additionally documented a normal posture and gait, and no radiating pain on movement or muscle spasm. X-ray findings of the cervical spine were within normal limits. The examiner diagnosed cervicalgia (pain in the neck).

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.

Cervical ROM
(Degrees)
MEB ~ 3 Mo. Pre-Sep VA C&P ~ 5 Mo. Post-Sep VA C&P ~ 12 Mo. Post-Sep
Flex (45 Normal) Full 45 pain occurs 15
Extension (45) Full 45 pain occurs 10
R Lat Flexion (45) Full 45 20
L Lat Flexion (45) Full 45 20
R Rotation (80) Full 80 60
L Rotation (80) Full 80 60
Combined (340) Full 340 185
Comment Without radiating pain Painful motion
§4.71a Rating 0% 0% vs. 10%* 30%
invalid font number 31502 *IAW 4.59 painful motion invalid font number 31502

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA chose the same coding option for the condition and both assigned a non-compensable rating of 0% IAW §4.71a (schedule of ratings–musculoskeletal system), based on normal ROM and absence of radiating pain. The Board agreed the totality of the evidence for this condition at the time of separation did not meet the criteria for a 10% rating IAW VASRD §4.59. As before, the Board noted the CI engaged in his powerlifting hobby despite his condition and medical advice on multiple occasions not to, lifting up to 350 pounds. And while the VA exam occurred about 12 months after separation, the Board did not consider it probative as it likely reflects worsening of the disease in the absence of trauma or surgery. There was also no evidence of ratable peripheral nerve impairment or DDD 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the neck pain condition.

Bilateral Foot Pain Condition. At the CI’s enlistment physical in 1996, the examiner documented mild bilateral asymptomatic pes planus. At the time of his retention physical exam in 2004 the examiner documented mildly symptomatic pes planus and the CI’s use of orthotics. The MEB NARSUM documented the CI developed worsening bilateral foot pain during his first tour in Iraq in 2003: he began to notice his feet going numb while standing still. He was evaluated and again diagnosed with pes planus and fitted with orthotics. He then deployed a second time to Iraq and the condition worsened more despite the orthotics. At the MEB exam, the CI reported chronic, constant, dull and achy to sharp burning pain at the arches of both feet as well as at the point of insertion of the left Achilles tendon. He reported this to be a 7-8 of 10 in intensity on a pain scale. It was aggravated by running, jumping, or impact activity, standing for greater than 3 to 5 minutes without a chance to reposition or stretch, lifting greater than 40 pounds, and the prolonged wearing of body armor or a rucksack, as well as going up or down stairs and squatting. It was alleviated with rest and ice application. There was no mention of surgery as a treatment option for this condition. The profile identified the condition and corroborated his reported limitations. The NARSUM cited the podiatry exam completed on 3 May 2006. It documented slightly diminished sensation on the left, normal on the right, instability in heel rise and difficulty with resupination, but 5 of 5 in muscle strength testing with plantar flexion, dorsiflexion and eversion. Weight bearing X-rays revealed bilateral pes planus. The podiatry examiner diagnosed symptomatic pes planus and Stage 1 posterior tibial tendon dysfunction. At the C&P exam, the CI reported bilateral foot pain that traveled to the legs, knees and hips. He had stiffness of the feet after rest and swelling and fatigue. He reported that he did not receive any treatment for his foot condition. The C&P exam demonstrated tenderness of both feet, a slight degree of angle deformity present on the feet which was corrected by manipulation, good alignment of the Achilles tendon bilaterally and no forefoot, or midfoot malalignments. The examiner diagnosed symptomatic pes planus.

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA chose different coding options for the condition, but this did not bear on rating. The Board agreed the PEB’s chosen code 5276 (pes planus) captures the clinical pathology and is appropriate for a bilateral criteria, unlike the VA’s chosen code 5284 (foot injury, other) which is for a single foot. The PEB adjudicated the condition as EPTS but without PSA. The Board’s pivotal discussion focused on whether there was permanent aggravation. The Board noted the CI’s cumulative active duty time does not meet the 8-year requirement that the condition be automatically considered PSA. The Board however did review the entire STR for clinical evidence of permanent aggravation. The CI sought treatment for symptomatic pes planus after both deployments which was a change from his entrance exam but he was retained for duty in between deployments with the use of orthotics, and he reported at the time of the VA exam that he was not actively seeking treatment for his feet. Therefore the Board agreed the evidence does not support a conclusion of permanent aggravation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determined there was insufficient cause to recommend a change in the PEB adjudication for the bilateral pes planus condition.


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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the bilateral foot pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.




RECOMMENDATION: The Board recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION VASRD CODE RATING
Low Back Pain 5299-5237 0%
Neck pain 5299-5237 0%
Bilateral Foot Pain 5299-5276 EPTS
COMBINED 0%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120831, w/atchs
Exhib
it B. Service Treatment Record
Exhibit C. Department of Veterans
’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review



SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXX, AR20140001864 (PD201201622)


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                                                 
XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

Similar Decisions

  • AF | PDBR | CY2014 | PD-2014-01985

    Original file (PD-2014-01985.rtf) Auto-classification: Denied

    According to the VASRD rules for rating the spine in effect at the time of separation thoracic and lumbar spine conditions coded IAW §4.71a are provided a single disability rating and thus the thoracic DDD and the lumbago (listed by the PEB as separate conditions) are subsumed in the §4.71a rating that follows. Since the disability due only to the left foot cannot be isolated by the clinical evidence or from the fitness implications of the bilateral condition, the Board consensus was that...

  • AF | PDBR | CY2011 | PD2011-00386

    Original file (PD2011-00386.docx) Auto-classification: Approved

    The PEB adjudicated the lumbar condition as unfitting, rated 10%, with presumptive application of the US Army Physical Disability Agency (USAPDA) pain policy. The MEB exam followed a pre-separation VA Compensation and Pension (C&P) exam performed two months earlier; at which the CI had related significantly more severe pain with bilateral radiation, and more significant physical limitations. In the matter of the pes planus with plantar fasciitis condition, the Board unanimously recommends...

  • AF | PDBR | CY2012 | PD2012 01283

    Original file (PD2012 01283.rtf) Auto-classification: Approved

    Low back pain (LBP) and right foot pain conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. -- 210No mention of painful motionPain with motion0% 10%The Board directs attention to its rating recommendation based on the above evidence.After consideration of the two back examinations noted above, it was determined that both exams had probative value, since both were conducted in a thorough manner, and were performed within 6 months of separation. Right Foot Pain .

  • AF | PDBR | CY2014 | PD-2014-01418

    Original file (PD-2014-01418.rtf) Auto-classification: Approved

    The CI’s chronic bilateral foot pain, chronic low back pain (LBP), plantar fasciitis and pes planus conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The IPEB did not address the remaining conditions (plantar fasciitis, pes planus and adjustment disorder).The CI appealed to the Formal PEB (FPEB) which reaffirmed the IPEB’s findings for the chronic low back condition as unfitting, rated at 10%, but changed the chronic foot pain (bilateral) diagnosis to bilateral...

  • AF | PDBR | CY2012 | PD 2012 01549

    Original file (PD 2012 01549.txt) Auto-classification: Denied

    Post-Separation) – All Effective Date 20030829 Condition Code Rating Condition Code Rating Exam Chronic LBP w/o Radicular Signs 5299-5295 10% Chronic LBP 5237 10% 20030930 Chronic B/L Shin Splints 5099-5022 0% B/L Shin Splints 5099-5022 NSC* 20030930 Lt Tibia Stress Fracture 5262 NSC* 20030930 Mild Pes Planus Not Unfitting No Corresponding VA Entry .No Additional MEB/PEB Entries. Although the CI experienced shin splint pain with the vigorous physical activity associated with military...

  • AF | PDBR | CY2011 | PD2011-00905

    Original file (PD2011-00905.docx) Auto-classification: Approved

    The PEB adjudicated the chronic left foot and ankle pain condition and mechanical LBP condition as unfitting, rated 10% and 0% respectively, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). Left Foot and Ankle Pain Condition . The PEB’s 0% rating was based on an assessment that the condition was characterized by “slight subjective symptoms only.” The VA’s 20% rating was assigned for “muscle spasm on extreme forward bending, loss of lateral spine motion,...

  • AF | PDBR | CY2012 | PD2012 01675

    Original file (PD2012 01675.rtf) Auto-classification: Denied

    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. Back pain, along with foot pain, was mentioned in a sick call note in 1999, although the entry elaborated only the foot complaint. An individual with a complaint of chronic low back pain, a normal objective examination, and normal objective testing is normally not referred...

  • AF | PDBR | CY2012 | PD2012 01689

    Original file (PD2012 01689.rtf) Auto-classification: Approved

    The back and bilateral knee conditions, characterized as “chronic non-radicular low back pain”and“chronic bilateral knee pain”were forwarded as not meeting retention standards, to the Physical Evaluation Board (PEB) IAW AR 40-501.A symptomatic pes planus condition was identified by the MEB and also forwarded as failing retention standards.The informal PEB adjudicated the chronic low back and bilateral knee pain conditions as unfitting, rated 10% and 0%.The remaining condition was determined...

  • AF | PDBR | CY2013 | PD-2013-02196

    Original file (PD-2013-02196.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. ROM limited by pain Pain with repetition. With a normal gait, non-tender MEB examination (but tender VA examination), normal X-rays, and lack of abnormal wear from weight bearing, the Board found no route to a rating...

  • AF | PDBR | CY2009 | PD2009-00520

    Original file (PD2009-00520.docx) Auto-classification: Denied

    The CI did not appeal the case, and was thus medically separated with a 10% combined disability rating. The Board considered any additional lower extremity disability contributed from bilateral pes planus and healed stress fracture of the right tibia in rating the CI’s unfitting shin splint conditions. In the matter of the bilateral shin splints condition, the Board unanimously recommends that each leg be separately adjudicated as follows: an unfitting right shin splint condition, coded...