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AF | PDBR | CY2013 | PD 2013 00624
Original file (PD 2013 00624.rtf) Auto-classification: Denied
RECORD OF PROCEEDING
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-00624
BRANCH OF SERVICE: Army  BOARD DATE: 20140820
SEPARATION DATE: 20021206


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (91S10/Preventive Medicine Technician) medically separated for a pain condition. This condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a P3/U3/L3 profile and referred for a Medical Evaluation Board (MEB). The lumbalgia, plantar fasciitis bilateral, left hip arthralgia, history of left superior pubic ramus stress fracture (existed prior to service [EPTS]), polyneuropathy etiology unknown and menorrhagia conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB adjudicated multiple area pain (back, feet, left hip) as unfitting, rated 0%, with cited application of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “My conditions prohibit from maintaining manual labor employment and obtaining other types of employment for which there are several candidates due to feelings of insecurity of self-doubt.”


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 multiple area pain (back, feet and left hip with subsumed/associated history of left superior pubic ramus stress fracture) condition is addressed below. The not-unfitting polyneuropathy and menorrhagia, as per the contention, were identified by PEB; and, thus are within the DoDI 6040.44 defined purview of the Board. Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected conditions continue to burden her; but, 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.


 RATING COMPARISON :

Service IPEB – Dated 20021112
 VA* - (2.7 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Multiple Area Pain (Back, Feet, Left Hip) 5099-5003 0% Dysfunction at T4, T5 5291 NSC 20030224
Back Condition 5295 NSC 20030224
Rib Condition, Left Side L3, L4 5299-5297 NSC 20030224
Bilateral Plantar Fasciitis 5299-5276 0% 20030224
Left Hip Condition w/ Arthralgia 5255 NSC 20030224
History of Left Superior Pubic Ramus Stress fracture (EPTS) Not Unfitting S/P Fracture of Left Superior Pubic Ramus 5299-5255 NSC 20030224
Polyneuropathy Etiology Unknown Not Unfitting Neuropathy 8520 NSC 20030224
Menorrhagia Not Unfitting Menorrhagia 7629 NSC 20030224
Other x 0 (Not in Scope)
 Other x 4 (Not in Scope) 20030224
Combined: 0%
 Combined: 30%
* Derived from VA Rating Decision (VARD) dated 20030224 (most proxima te to date of separation (DOS))


ANALYSIS SUMMARY: The PEB combined the back, feet and left hip conditions under a single VASRD code, 5099-5003, and rated them 0% citing the USAPDA Pain Policy. The Board presumes this adjudication was based on the overall effect of those conditions and not one or more individually unfitting conditions. This presumption is based on the following passage contained in the PEB Proceedings document (DA Form 199):

Your functional limitations in maintaining the appropriate level of vigor, caused by the physical impairments recorded above, make you medically unfit to perform the duties required of a soldier of your rank and primary specialty.

This approach by the PEB reflects its judgment that the constellation of conditions was unfitting, but that each condition was not individually unfitting. Since this is an intrinsic service prerogative outside the scope of the VASRD, the Board does not recommend separate codes and ratings in this circumstance unless members agree that one or more conditions were separately unfitting independent of overall effect. In support of a recommendation for one or more separate ratings derived from a presumed PEB overall effect adjudication; members must be satisfied, based on a preponderance of the evidence, that each condition recommended for separate rating would have independently resulted in MEB referral and a PEB finding that the member was unfit due to physical disability. The Board’s initial charge in this case was therefore directed at determining if the PEB’s single overall effect rating was justified in lieu of separate unfit determinations and ratings. To that end, the evidence for the back, feet, and left hip conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Multiple Area Pain - Back Condition: The evidence present for review documents that the CI was first seen for her low back pain (LBP) approximately 4 months prior to separation. There was no acute injury identified and she was treated with non-steroidal anti-inflammatory drugs (NSAIDS). A follow-up evaluation documented that the NSAIDS were working but “not well.” The CI had plain film X-rays and a magnetic resonance imaging study of her lumbar spine, both were normal. She was also treated by physical therapy (PT) where it was documented that her limited range-of-motion (ROM) was corrected by “manipulation.”

At the VA Compensation and Pension (C&P) exam dated approximately 2 months after separation, the CI reported flare-ups occurred; however, she was unable to specify when or for how long. At the time of exacerbations, she was unable to stand straight, bend, lift more than 20 pounds, or sit comfortably. The pain radiated to the shoulders and neck and did not require bed rest or treatment by a physician. The pertinent physical exam findings are summarized in the chart below:

“
Thoracolumbar ROM
 Ortho 2 Mos. Pre-Sep NARSUM 1.5 Mos. Pre-Sep VA C&P 2.5 Mos. Post-Sep
Flexion (90 Normal)
 70Full AROM” 90
Combined (240)
 -- 240 240
Comment
 Pos. painful motion & tenderness to palpation Pos. antalgic gait & tenderness to palpation; Normal strength, reflexes & sensation No tenderness or muscle spasm; Neg. straight leg raise
§4.71a Rating: Interim Spine rules
 10% 10% 0%

The LBP condition was profiled only upon entry into the disab ility evaluation process. The c ommander’s statement does not mention a specific condition as causing duty limitation, only notes “pain and physical limitations.” It also contained the following sentence, “I believe that due to her physical limitations and her lack of desire to be a professional soldier, we shoul d medically board this soldier from the Army.” The Board first considered if the LBP condition itself , having been de-coupled from the combined PEB adjudication, remained unfitting as established above. The well - established principle for fitness determinations is that they are performance-based. The Board could not find evidence in the c ommander’s statement or elsewhere in the service treatment record ( STR ) that documented any significant interference of the LBP condition with the performance of duties at the time of separation, nor were any physical findings documented by the orthopedic specialist, the narrative summary ( NARSUM ) or VA examiners , which would logically be associated with significant disability. The Board noted that the VA did not grant service - connection for the LBP condition. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the low back pain condition was integral to the CI’s inability to perform her MOS; and, accordingly cannot recommend a separate rating for it.

Multiple Area Pain – Feet Condition. The evidence present for review documents that the CI complained of left foot and bilateral lower leg pain in March 2002 stating that the pain began in boot camp. She was evaluated with a bone scan that revealed a stress fracture in her left 3rd metatarsal (foot bone) and “stress changes” in the right foot/ankle and both knees. She was referred to PT and treated with duty restriction and soft sole footwear. The evidence documents that on a visit in mid-April 2002 the stress fracture symptoms had resolved. Additionally, in August 2002 an orthopedic exam of her left foot and ankle was normal. A repeat bone scan in September 2002, 3 months prior to separation, revealed, “She has had a bone scan which does not show the stress fractures. She has evidence of minor activity in her right tibia and right calcaneus (heel) reflecting repetitive stress injury but not sufficient to suggest a stress fracture or shin splints.” Two months prior to separation, a plain film X-ray of the right foot was normal. At the MEB NARSUM examination completed approximately 2 months before separation, the CI reported a year of left foot pain that had been recurrent and not improved or resolved with treatment. The physical exam revealed left foot with some diffuse tenderness to palpation in the mid foot. A month prior to separation, an orthopedic provider documented the following:

“No improving – did not get new boots yet. Has not refilled Fosamax (medication for stress fracture healing/prevention). States nothing is helpful and wants to get out of the Army.”

At the C&P exam dated, approximately 2 months after separation, the CI reported she had pain, stiffness, swelling, and fatigue when she stood, walked, and at rest. The physical exam revealed some slight tenderness to palpation over the plantar areas. She did not use any assistive devices for ambulation, there was no limited function of standing or walking, and her gait was normal. X-rays of both feet were normal. The Board noted that based on the C&P examination the VA granted a 0% rating for the bilateral foot condition. The stress fracture condition was profiled from late March through separation. The commander’s statement did not mention a specific condition. The Board notes the conflicting evidence concerning the CI’s bilateral foot pain. While a stress fracture condition was present 9 months prior to separation, the evidence documents that it had resolved approximately 2 months later. The CI continued to complain for foot pain but did not comply with the recommendations of her providers.

The Board first considered if the bilateral foot condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that, based on the above evidence, there was a questionable basis for arguing that it was separately unfitting. The well-established principle for fitness determinations is that they are performance-based. The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of the foot condition with the performance of duties at the time of separation, nor were any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability. It should also be noted that there is insufficient evidence in support of a compensable rating for bilateral foot condition, even if were conceded as unfitting. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the bilateral foot condition was integral to the CI’s inability to perform her MOS; and, accordingly cannot recommend a separate rating for it.

Multiple Area Pain - Left Hip. The CI was involved in a motor vehicle accident (MVA) on 31 March 2001, where she suffered a fractured pelvic bone. She healed without surgery and was cleared for military service 6 months later. The whole body bone scan completed in March 2002, did not identify any abnormality in the area of her previous pelvic fracture. The CI presented in July 2002, complaining of a 5-month history of left hip pain. There was tenderness of the left pelvis and a plain film X-ray revealed a healing non-displaced fracture of the left superior pubic ramus (the same area injured in the MVA). A repeat bone scan in September 2002 demonstrated normal hips (pelvis). At the NARSUM examination approximately 2 months before separation, the CI reported a year of left hip pain that had not responded to any treatment. The physical exam revealed no pain with flexion/extension as well as internal and external ROM, active ROM, passive ROM. The left hip was normal.

At the C&P exam dated, approximately 2 months after separation, the CI reported suffering from this condition for about 9 months. She stated that she had constant pain in the left hip, especially with standing, walking or running. The physical exam documented normal hip ROM measurements with slight tenderness over the left hip. The Board noted that the VA did not grant service-connection for the left hip pain condition.

The Board first considered if the left hip condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that, based on the above evidence, there was a questionable basis for arguing that it was separately unfitting. The well-established principle for fitness determinations is that they are performance-based. The left hip pain condition was profiled only upon entry into the disability evaluation process. The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of the left hip condition with the performance of duties at the time of separation, nor were any physical findings documented by the NARSUM or VA examiners which would logically be associated with significant disability. It should also be noted that there is insufficient evidence in support of a compensable rating for the left hip condition, even if were conceded as unfitting. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the left hip condition was integral to the CI’s inability to perform her MOS; and, accordingly cannot recommend a separate rating for it.

Contended Polyneuropathy and Menorrhagia Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that polyneuropathy and menorrhagia 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, and requires a preponderance of evidence. The polyneuropathy and menorrhagia conditions were not profiled or implicated in the commander’s statement. All were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the Polyneuropathy and menorrhagia 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 multiple area pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the multiple area pain (back, feet, left hip) condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended polyneuropathy and menorrhagia 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130521, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review



 SAMR-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 XXXXXXXXXXXXXXX , AR20150004171 (PD201300624)

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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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