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AF | PDBR | CY2013 | PD-2013-02094
Original file (PD-2013-02094.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02094
BRANCH OF SERVICE: Army  BOARD DATE: 20140509
SEPARATION DATE: 20041203


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (12B/Combat Engineer) medically separated for lumbar disc disease and costochondritis (chest wall pain originating from inflammation of rib cartilage attachments). Neither condition could be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a U3/L3 profile and referred for a Medical Evaluation Board (MEB). The lumbar condition, characterized as “low back pain secondary to compression fracture of L1,” and costochondritis were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated both conditions as unfitting, rated 10% each, specifically referencing application of the US Army Physical Disability Agency (USAPDA) pain policy for the chest wall pain. The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB’s findings and recommendations. An FPEB Administrative Correction was performed, but had no bearing on the findings and recommendations. The CI elected Reserve Retirement in lieu of severance pay.


CI CONTENTION: The CI simply listed “lumbar L1 compression fracture, L4 to S1 Herniated Disc, costochondritis and Depressive Disorder”, without further elaboration.


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 lumbar and chest conditions are addressed below. The requested depressive disorder condition was not identified by the MEB/PEB, and is not within the DoDI 6040.44 defined purview of the Board; any conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

FPEB Admin Corr – Dated 20040928
 VA - (3.5 Mos. Pre-Separation) *
Condition
 Code Rating Condition Code Rating Exam
Back Pain … L1 Compression Fracture 5235 10% Lumbar Compression Fracture and Herniated Disc 5235-5243 50% 20040818
Costochondritis 5099-5003 10% Costochondritis 5099-5022 10% 20040818
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 50308 ( most proximate to date of separation [ DOS ] ).
* A VARD of 20080623 (3 years post-separation) added Depressive Disorder, rated 10%, retro effective to DOS .



ANALYSIS SUMMARY:

Lumbar Spine Condition. There is an entry in the service treatment record (STR) documenting a fall from a hammock in February 2004 (9 months pre-separation and after an active duty extension for medical evaluation of the chest wall condition) with an X-ray diagnosis of a “mild” compression fracture of L1. Subsequent magnetic resonance imaging confirmed the latter finding and additionally identified a bulging disc at L5/S1 with bilateral nerve root compression. A primary care note from April 2004 (8 months pre-separation) documents a range-of-motion (ROM) of 40 degrees flexion (90 degrees normal). The CI underwent a neurological evaluation a month later; at which time he reported continuing pain, but with an examiner notation, “patient improved.” That physical exam noted antalgic gait (use of a cane), spasm and normal neurological findings except for some mild sensory findings on the left. The ROM evaluation documented forward flexion to 40 degrees and left/right lateral flexion of 20 degrees each (normal 30 degrees). An orthopedic note in June 2004 (6 months pre-separation) documented that the CI was being treated in a brace and that surgery was not currently recommended. A ROM evaluation was performed by physical therapy (PT) the following month, recording flexion of 15 degrees and exceedingly limited ROM in all planes; but, the therapist specified that the ROM limitations “could be part of the … brace that prevents him from using his back in the proper range.” The STR documents a cumulative 2 weeks of physician directed convalescent leave (separate 1-week periods soon after the injury), various entries confirming antalgic gait, none noting abnormal contour and none documenting neurologic findings of extremity weakness or other significant deficits.

A VA pre-separation Compensation and Pension (C&P) was performed on 18 August 2004 (3+ months pre-separation) and noted constant “severe” pain without radiation. The CI remained in a brace and significant physical limitations were elaborated which included encroachment on activities of daily living. The VA physical exam documented abnormal gait and spinal contour (reverse lordosis), spasm and guarding. A significant positive neurologic finding was bilateral 3/5 weakness of the iliopsoas muscles (deep flexors at the hip), but the examiner documented normal strength of the remaining proximal (and all other) muscle groups and normal sensation and reflexes. The VA ROM measurements were flexion of 30 degrees and combined ROM of 165 degrees (normal 240 degrees). The VA examiner further stated, “Upon repetitive motion patient presented additional limitation by pain, fatigue, weakness, and lack of endurance,” without further elaboration or ROM quantification. The narrative summary (NARSUM) in this case was dated 20 April 2004, 2 months after the injury and preceding much of the above evidence. It concluded that the costochondritis condition had rendered the CI unable to perform his MOS and basic military physical requirements “even before his trauma to his back;” and, characterized the lumbar condition as improving but not yet stable. The physical exam of the back was deferred because of the brace, but normal neurological findings were noted.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 10% rating under code 5235 (vertebral fracture or dislocation) was not compliant with VASRD §4.71a criteria for the ROM in evidence. The VA’s 50% rating was premised on VA ROM evidence (30 degrees is the threshold for 40%) with an additional (DeLuca) 10% citing the examiner’s statement quoted above. Members agreed that supplementation of a ROM-based rating recommendation in this case by invoking DeLuca criteria from the VA evidence was not supported; given the lack of specificity by the examiner and lack of corroboration by any service evidence. The Board thus deliberated the probative value of the disparate ROM evidence under consideration. Members agreed that the greatly compromised ROM evidence from the PT examination was of limited probative value, agreeing with the examiner that the immobility from the brace would induce an “artificial” loss of ROM until a recovery period of free motion were allowed. To a certain extent, this factor may have been operant at the time of the C&P evaluation; although, circumstances were not as clear as for the PT measurements with directed examiner comments. This issue considered, however, the Board notes that the most probative ROM evaluation was the VA C&P done closest to separation which was also consistent with a §4.71a rating of 40%. After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the lumbar spine condition. It agreed that the PEB code designation was appropriate to the case.

The Board finally considered whether a separate service rating could be recommended under a peripheral nerve code (or codes) for the residual bilateral radiculopathy present at separation. Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine cases. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case has no functional implications, and only the VA examiner’s entry for illiopsoas motor deficit provides evidence of any functional muscle weakness. Although such weakness may have existed, the pain limitations in this case do not allow a conclusion that it was an independent factor regarding fitness. It is further noted that no ratable neuropathy was judged to be present by the VA. There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathies; and, the Board cannot support a recommendation for an additional service disability rating on this basis.

Costochondritis Condition. The earliest STR entries for this condition reflect an onset of chest pain with lifting and exertion in February 2003, the same month the CI’s unit was mobilized for Operation Enduring Freedom. A work-up for cardiac and other serious etiologies of the complaint was negative. A bone scan in July 2003 was consistent with a diagnosis of costochondritis. The pain persisted, limiting use of his upper extremities and, resulted in a U3 profile beginning in June 2003. He did not deploy, and the pain did not respond to a protracted trial of PT and conservative measures. The VA pre-separation C&P examination (same date as spine C&P) documented constant chest wall pain with severe flares (specifying 10/month) exacerbated by truncal movements and lifting. The physical exam noted some left sided sternal tenderness and edema. The NARSUM noted that “his [chest wall] pain has continued to recur with physical activity, in particular with use of his upper extremities;” and, the exam documented parasternal tenderness.

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and the VA applied 5003 (degenerative arthritis) based codes (the VA’s 5022, periostitis, defaults to 5003 criteria) and, both arrived at the same 10% rating. VASRD §4.71a does not provide for an applicable code outside the analogous 5003 approach and 10% is the maximum achievable rating under 5003 coding. Members considered analogous rating under §4.73 muscle coding or §4.124a nerve coding; but, agreed that the clear absence of any muscle or nerve pathology in this case would render such analogous links quite tenuous; and, that the criteria of those codes would not reasonably correspond with the disability being rated. After due deliberation, considering all of the evidence and with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the costochondritis 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. As discussed above, PEB reliance on the USAPDA pain policy for rating the costochondritis was operant in this case, and was adjudicated independently of that policy by the Board. In the matter of the lumbar spine condition, the Board unanimously recommends a service disability rating of 40%, coded 5235 IAW VASRD §4.71a. In the matter of the costochondritis 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 the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Compression Fracture and Disc Disease, Lumbar Spine 5235 40%
Chronic Chest Wall Pain Secondary to Costochondritis 5099-5003 10%
COMBINED 50%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131030, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                 
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150002505 (PD201302094)
1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% effective the date of the individual’s original medical separation for disability with Reserve retirement.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with Reserve retirement.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with Reserve retirement.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for payment of permanent retired pay at 50% effective the date of the original medical separation for disability with Reserve retirement.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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

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