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AF | PDBR | CY2013 | PD-2013-02197
Original file (PD-2013-02197.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02197
BRANCH OF SERVICE: Army           BOARD DATE: 20140829
SEPARATION DATE: 20051123


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 (31B/Military Police) medically separated for a thoracic musculoskeletal condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). His profile allowed for an alternate aerobic event to satisfy physical fitness standards. He was issued a permanent U3/L3/H2 profile and referred for a Medical Evaluation Board (MEB). The thoracic condition, characterized as “intercostal muscle spasm,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded five other conditions for PEB adjudication (as charted below; plus an additional condition related to a minimally elevated fasting blood sugar); all judged to meet retention standards. The Informal PEB (IPEB) adjudicated “chronic and recurrent pain and spasm in the mid-thoracic area” as unfitting, rated at 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting . The CI appealed his IPEB, but waived a Formal PEB and, submitted additional information for consideration. The PEB reviewed the additional information, but reaffirmed the original IPEB’s findings and recommendations. The case was then reviewed by the USAPDA which re-affirmed the IPEB findings. The CI was medically separated.


CI CONTENTION: The application stated, “1. Degenerative joint disease, left elbow/left hand (claimed as numbness of both) 2. Arthritis, left & right knees 3. Bursitis, left shoulder 4. Tinnitus 5. Pes planus, right foot 6. Arthritis, lumber spine (claimed as mid/low back condition) 7. Peripheral neuropathy or radiculopathy right lower extremity 8. Hypertension 9. Hearing loss 10. Intercostal muscle spasm 11. Polyps Pending VA review process for rating increase for the following conditions; a. Thoracic spine b. Degenerative joint disease, left elbow/left hand (claimed as numbness of both) . ”


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 thoracic musculoskeletal condition is addressed below. The requested bilateral knee condition, lumbar spine condition, left hand ulnar nerve dysfunction and hypertension (determined to be not unfitting by the PEB) are also addressed below. The requested left shoulder condition, tinnitus, right foot condition, right lower extremity radiculopathy, hearing loss and polyp conditions were not identified by the PEB; and, are not within the DoDI 6040.44 defined purview of the Board. Those, and any conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON :

Service IPEB – Dated 20051018
 VA (6+ Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain/Spasm ... Thoracic 5099-5003 0% Intercostal Muscle Spasm 8599-8519 0% 20060612
Low Back Pain Not Unfitting Lumbar Strain/Arthritis 5242 0% 20060612
Ulnar Nerve Dysfunction [Left] Not Unfitting L Hand/Elbow Numbness 5206-5010 10% 20060612
Early Degenerative Arthritis of the Knees Not Unfitting Arthritis, Right Knee 5260-5010 10% 20060612
Arthritis, Left Knee 5260-5010 10% 20060612
Hypertension Not Unfitting Hypertension 7101 0% 20060612
Other x 1 (Not in Scope)
 Other x 10 20060612
Rating: 0%
 Combined Rating: 50%
Derived from VA Rating Decision (VA RD ) dated 200 60725 (most proximate to date of separation )


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Thoracic Musculoskeletal Condition. This condition, as well as all conditions under consideration in this case, developed following a training accident on 26 January 2003; with the CI falling approximately 14 feet from a rappelling perch. The service treatment record (STR) contains a sick call slip from the day of the injury which does not include thoracic pain among the complaints, but a follow-up entry 9 days later includes a complaint of chest wall pain. There is no entry in the available STR which addresses the condition for the ensuing 14 months. A clinic entry from April 2004 documents “chest pressure – like a muscle spasm brought on by certain activity – episodic ... lasts for few seconds.” A yearly employment physical by the VA where the CI worked as a security officer is in evidence from November 2004 (7 months after the preceding entry); documenting “no health problems of which he is aware,” stating that no rated disabilities were found, and detailing a normal physical examination. The next STR entry is 3 months after the VA physical; describing the thoracic pain as intermittent, sometimes lasting “1/4 of the day,” and characterized as “incapacitating” (pain rated 9/10). The last outpatient entry in the STR which characterizes the pain is from June 2005 (6 months prior to separation) and, documents “pain bilateral rib cage mid T-spine ... spasms” rated 2-3/10 with exacerbations to 7-8/10. A chest X-ray and magnetic resonance imaging (MRI) of the thoracic spine were normal.

The narrative summary (NARSUM) was prepared 2 months prior to separation and characterizes the complaint as “pain or spasms in his ribcage ... 6-8 times per day [rated 7/10-8/10] ... precipitated by any movement of the upper torso and particularly by activities such as lifting.” Physical examination of the thorax was not documented, but neurological findings were normal and, range-of-motion (ROM) measurements of the thoracolumbar spine (submitted by physical therapy to the MEB) were flexion 90 degrees and combined ROM 240 degrees (both normal). The NARSUM diagnostic impression was “intercostal muscle spasm with interference with activities of daily living and military lifestyle.”

The VA Compensation and Pension examination was performed 7 months after separation, documenting that the CI remained in the same VA employment position (security officer) as noted above. The only mention of the thoracic condition was in the context of the complaint of back pain, stating, “He will get spasms that come around the chest and with increased activity he gets increased spasms. An example would be when he lifts rocks ... about 40 pounds ... by the end of the day he notices some stiffness, tired, spasms ... last about 5-10 seconds.” Within the context of the combined thoracic/lumbar complaints, the VA examiner stated that it “does not really affect his work ... able to control it.” No chest wall physical exam was documented, and normal thoracolumbar ROM measurements (“without difficulty”) were recorded. The most probative functional examination in evidence for this condition is an occupational evaluation by the VA 6 weeks after separation, as clearance for continued employment as a security officer (with a requirement to lift more than 45 pounds). The examiner noted no chest wall tenderness, but “focal ERS (extension, rotation, and side bend) right type dysfunction”; assessing that the “symptoms and injury are consistent with an old mechanical type injury of the dorsal spine;” and, concluding that he could be returned to work without limitations.

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 0% rating analogous to 5003 (degenerative arthritis) rested on application of the USAPDA pain policy; but, IAW VASRD §4.7 (higher of two evaluations), the Board must consider if a compensable rating is achievable under alternate coding. The VA’s 0% rating was under code 8599-8519 (analogous to peripheral nerve impairment of the long thoracic nerve) which confers a 0% rating for “mild” impairment. The same code offers 20% and 30% ratings for “moderate” and “severe” impairment respectively. With analogous coding under 5003 or a spine code, a minimum compensable rating of 10% could be reasonably entertained via VASRD §4.59 (painful motion) or §4.40 (functional loss). Members concurred however, that the most clinically applicable coding for the condition was under the appropriate muscle code; the latter being code 5320 (Group XX, thoracic spinal). This yields ratings of 0% for “slight” disability, 10% for “moderate,” 20% for “moderately severe,” and 40% for “severe.” With consideration of VASRD §4.56 (evaluation of muscle disabilities) and the “cardinal signs” elaborated therein, members deliberated the appropriate rating recommendation under this approach. Members agreed that the attendant muscle disability was more than slight, but not reasonably characterized as greater than moderate. Having so decided, with consideration of all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the thoracic musculoskeletal condition under code 5399-5320.

Contended Lumbar Spine Condition. The STR contains a 1985 civilian evaluation for back pain “precipitated by lifting at his job,” and a military entry 2 months later referencing a history of back pain dating to a 1980 Service injury. There is no subsequent evidence of a continuing issue with back pain until after the 2003 injury (as above). An STR entry a month after that incident records a complaint of “back ache since fall.” The next STR entries in evidence are a year later in the context of the MEB evaluation, which document a complaint of back pain along with the other MEB conditions resulting from the fall. There was occasional right hip and thigh radiation, but no other radicular symptoms and, an MRI was normal. The NARSUM documents daily intermittent episodes of pain lasting 1-2 hours and rated 6-7/10 “particularly with overuse such as a 3-mile walk;” and, specified that the lumbar condition was distinct from the thoracic condition. The commander’s performance statement provides no condition-specific fitness evidence, stating “his condition does preclude him from performing his duties.” The L3 profile included an entry for low back pain. The post-separation VA examiner’s functional opinion was as addressed above for the thoracic condition (no significant occupational impediments).

The Board’s main charge is to assess the fairness of the PEB’s determination that this condition was 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. Although the condition was profiled, it was assessed as medically acceptable by the MEB physician, and not specifically implicated by the commander. The Board considered that it could be construed as so intertwined with the unfitting thoracic condition that it could be conceded as itself unfitting; but, the MEB examiner was satisfied with the distinction and, there is no performance based evidence from the record suggesting that it independently interfered with satisfactory duty performance to any significant extent. 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 lumbar spine condition.

Contended Left Upper Extremity Neuropathy. It is noted that the CI is left hand dominant. A significant left elbow contusion was documented as an immediate component of the 2003 fall. An X-ray of the elbow was negative except for mild degenerative changes. As with the back complaint, there are no interim STR entries until MEB proceedings a year later. Persistent complaints of pain with numbness of the lateral left hand and fingers are documented in the MEB entries. An electrodiagnostic study was normal, and the neurologist assessed “ulnar nerve irritation without nerve damage.” A March 2005 entry (9 months prior to separation) states that no further evaluation of the condition was indicated, recommending “no duty limitations.” The NARSUM documented “recurrent numbness in the 4th and 5th fingers ... several times per day ... last 3-5 seconds ... precipitated by vigorous arm use.” MEB and VA ROM measurements of the elbow and wrist were normal or nearly so and strength (including grip) was normal (5/5). Although there was a permanent U3 profile, no cervical or upper extremity condition was listed; raising a question of the foundation for the U profile. The post-separation VA examiner stated that the condition “really does not affect his work ... [although] ... he avoids some lifting.”

With application of the same principles as elaborated for the lumbar condition, the Board deliberated the appropriateness of the PEB’s determination that this condition was not unfitting. It was judged to be medically acceptable by the MEB, the U3 profile is of diminished probative value and no performance based evidence suggests that there were significant functional limitations associated with it. Indeed, the CI was cleared by the VA both prior to separation, nearly 2 years after the injury (as stated above), and soon after separation obtained employment in the same field as his MOS. 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 left upper extremity neuropathy.

Contended Bilateral Knee Condition. An immediate complaint of left knee pain with ambulation was documented in association with the 2003 fall. Complaints were confined to the left knee until January 2005 (10 months prior to separation) when a periodic physical examination recorded “knee pain left > right.” There are multiple examinations confirming that both knees were stable with normal ROM and X-rays were remarkable only for “early degenerative changes.” The NARSUM documented “bilateral knee pain after running or extensive walking,” with pain rated 2/10 to 3/10 “if he walks 3 to 4 miles,” and stating “does not normally have pain in his knees if he has not exercised significantly.” The permanent L3 profile listed “knee arthritis.” The post-separation VA examiner corroborated the NARSUM limitations, noting complaints “only with running or activity at this time.” As per the preceding discussions, the Board deliberated the PEB fitness adjudication; noting that the condition was profiled, although judged to be medically acceptable. As per the preceding discussion, there was no performance based evidence suggesting significant MOS limitations and, as above, separate VA clearances for similar duties. 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 bilateral knee condition.



Contended Hypertension. The record documents asymptomatic treated hypertension, considered medically acceptable by the service, rated 0% by the VA, and with no fitness implications warranting discussion. The PEB’s fitness adjudication was appropriate.


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 thoracic musculoskeletal condition was operant in this case and it was adjudicated independently of that policy by the Board. In the matter of the thoracic musculoskeletal condition, the Board unanimously recommends a disability rating of 10%, coded 5399-5320, IAW VASRD §4.73. In the matter of the contended lumbar spine, left upper extremity neuropathy, bilateral knee, and hypertension conditions, the Board unanimously recommends no change in the PEB adjudications. 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
Thoracic Myofascial Injury and Dysfunction 5399-5320 10%
Chronic Low Back Pain Not Unfitting
Ulnar Nerve Dysfunction, Left Upper Extremity Not Unfitting
Early Degenerative Arthritis of the Knees Not Unfitting
Hypertension Not Unfitting
RATING 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131103, 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, AR20150007089 (PD201302197)


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                       XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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