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AF | PDBR | CY2013 | PD-2013-02636
Original file (PD-2013-02636.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02674
BRANCH OF SERVICE: Army  BOARD DATE: 20150506
SEPARATION DATE: 20051202


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard O-4 (Armor Officer) medically separated for a chronic low back pain (LBP) condition. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The “low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded five other conditions (gastroesophageal reflux disease, obstructive sleep apnea [OSA], seasonal allergies, tinnitus, and left ear high-frequency hearing loss) for PEB adjudication. The Informal PEB (IPEB) adjudicated “low back pain” as unfitting, but did not rate it as the condition was determined to be not compensable as the CI “was not unfit when he left active duty and current state of unfitness is result of natural progression in a civilian state.” The IPEB likely applied the Veterans Affairs Schedule for Rating Disabilities (VASRD) to these ratings. The remaining conditions were determined to be not unfitting . The CI appealed to the Formal PEB (FPEB), which changed the unfit condition to “chronic low back pain” and rated at 10%, and affirmed the IPEB findings regarding the five unfitting conditions. The CI made no further appeals and was medically separated.


CI CONTENTION: The CI attached two separate statements to his application which was reviewed by the Board and considered in its recommendations.


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

FPEB – Dated 20080228
 VA* - (~1 Mo. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5237 10% Degenerative Disc Disease, Moderate in Nature, L5-S-1 and Mild at L4-5 with Facet Spondylosis Lumbar Spine 5242-5010 10% 20080502
Obstructive Sleep Apnea Not Unfitting Sleep Apnea 6847 NSC STR
Tinnitus Not Unfitting Tinnitus Right Ear 6260 10% STR
Other x 3 (Not In Scope)
 Other x 5
RATING: 10%
 RATING: 20%
* Derived from VA Rating Decision (VA RD ) dated 200 80613 (most proximate to date of separation [ DOS ] ) .


ANALYSIS SUMMARY:

Chronic Low Back Pain Condition. A primary care note dated 5 December 2006 indicated LBP started during deployment. Chiropractic treatment and an orthopedic bed helped control the pain. A lumbosacral spine series dated 5 December 2006 revealed no fracture or significant subluxation with minimal degenerative changes. A magnetic resonance imaging (MRI) dated 23 January 2007 indicated moderate degenerative changes of the lumbar spine with lateral recess stenosis at L5,S1, potentially causing S1 symptomatology. A Physical Medicine and Rehabilitation consultation was carried out on 12 April 2007, which indicated the CI’s pain had improved markedly with physical therapy, but the pain that remained was centered midline low lumbar region and was non-radiating. Examination revealed a full range-of-motion (ROM) with low lumbar midline and bilateral paraspinal tenderness. There was negative straight leg raising (to determine nerve root irritation), no sciatic notch or popliteal tenderness, and no abnormal kyphosis, lordosis or scoliosis. Additionally, there was no sacroiliac tenderness bilaterally with provocative tests. Examination on 13 June 2007 revealed a full ROM with pain on extension. Neurologic examination was unremarkable. The CI was refractory to conservative care.

The MEB narrative summary dated 1 November 2007 indicated the CI noted a slow increase in the complaint of LBP beginning in November 2004 in the absence of an accident, injury or fall. With increased weight-carrying demands during deployment from December 2004 through December 2005 , the pain increased and was exacerbated. Upon completion of the tour, he was seen at the VA in February 2006 for evaluation and was treated conservatively. By May 2006 , pain was severe and limited his ability to walk and perform activities of daily living. Chi ropractic treatment provided temporary relief . Physical therapy obtained excellent results. A therapeutic mattress was also helpful in reducing the LBP and he continued to perform home exercises daily. The back pain interfered with his ability to wear body armor. There was no bowel or bladder dysfunction and the complaints had been stable for 9 months. Review of systems indicated “cervical and thoracic spine pain for which Soldier does not appear to have sought treatment.” A 13 Jun e 2007 X - ray series of the lumbar spine showed moderate disk height l oss and endplate and facet sclerosis at L5-S 1 . The vertebral bodies and int ervertebral disks were preserved in height, without significant degenerative change . An MRI of the lumbar sp in e dated 23 January 2007 indicated moderate degenerative cha n ges of the lumbar spine. There was a small concentric disk protrusion, which caused mild effacement of the presacral fat without any significant neural distortion or displacement. The radiologist’s conclusion was “lateral recess stenosis at L5,S1, potentially causing S1 symptomatology.” The CI reported intermittent sharp back pain approximately three times a week with increased intensity that ranged from 0-9/10 , which worsened with running, jumping, lifting heavy objects and riding in a car. He was unable to wear body a rmor, load-bear ing equipment or ride in a tactical vehicle or a tank and could not perform routine maintenance as part of his MOS. His prognosis was considered good without the increased we1ght-carrymg respon sibilities of a tank officer . Physical examination revealed no step off or muscle spasms with m ild tenderness to palpation of the right paraspinal muscle of the lumbosacral region. Neurologic evaluation was unremarkable .

The commander’s statement dated 12 September 2007 indicated his condition stemmed from lower back pain that was felt sometime in November 2004. He was unable to perform basic soldier’s skills and experienced back pain but with physical therapy and a strict profile, he was able to keep the pain at a minimum. On the Report of Medical History dated 19 October 2007 for the MEB examination, the CI reported he hurt his back on deployment and had lower back pain. The MEB physical examination dated 23 October 2007 noted decreased thoracic lumbar ROM without step off or muscle spasm and mild tenderness to palpation of the right lumbosacral region. The clinical neurologic evaluation box was checked normal. A permanent L3 profile was issued on 14 November 2007 for LBP with restrictions of no sit-ups, no running, no swimming, no wearing personal protective equipment, no standing more than 60 minutes without a break to reposition and stretch, no riding in a tactical vehicle and the CI could take an alternate physical fitness test.

At the VA Compensation and Pension (C&P) examination dated 2 May 2008, performed a month prior to separation, the CI reported he first noticed back pain carrying a backpack in November 2004 before deployment, which worsened during deployment, although he did see a chiropractor in 2000-2001. When he returned he sought and received care for the back pain, which was primarily on the left. Treatment by a chiropractor and physical therapy was carried out and consultation by a neurosurgeon in January 2008 indicated a diagnosis of degenerative disk disease with an unremarkable neuromuscular examination. At the time of the VA examination, he took only Advil (Ibuprofen-a nonsteroidal anti-inflammatory medication). The CI noted tingling in the lateral thigh and no back pain with the exception when he ran. There was some numbness over the left thigh, not related to disk injury, but related to meralgia paresthetica (numbness due to injury or entrapment of the lateral femoral cutaneous nerve). Examination revealed a 6 feet tall man who weighed 250 pounds. His gait was symmetrical and he was able to walk on his toes and heels and complete a deep-knee bend. On the back examination, he did appear to have an asymmetrical thoracic spine indicative of a possible levothoracic (leftward) scoliosis, the appearance of which changed at various times during the examination. He had no lumbar tenderness and no sciatic notch tenderness, but did have left sacroiliac tenderness. Lumbar X-rays from 5 December 2006 demonstrated disk space narrowing at L5-S1 with Grade 1 retrograde spondylolysis L5-S1 and early sclerosis at L5-S1 facets with normal SI joints. An MRI of the lumbar spine documented disc desiccation at L4-5 and L5-S1 with a mild posterior bulge at L4-5 and a moderate bulge at L5-S1. Facet disease was most prominent at L5-S1 but was also present at L2 through L5, but the foramina were quite patent. Flare-ups occurred with repetitive lifting about once or twice a month and running, although he did not run anymore. No radiculitis or radiculopathy was present and gait was normal. A temporally remote (almost 50 months post-separation) VA C&P examination was reviewed; however, it offered very limited or no probative post-separation evidence of any significant value, but did note forward flexion was to 85 degrees, which decreased to 75 degrees with repetition.

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)
 Ortho ~ 11 Mos. Pre-Sep
PT/MEB ~7 Mos. Pre-Sep
VA C&P ~1 Mo. Pre-Sep
Flexion (90 Normal)
 ROM full, but with pain on extension. 80( 80, 80, 82 ) * (90) 88
Extension (30)
 25( 28, 24, 24 ) * 25
R Lat Flexion (30)
 20( 22, 20 22 ) ** 30
L Lat Flexion (30)
 25( 28, 28, 25 ) ** 30
R Rotation (30)
 30( 52, 53, 53 ) ** 30 ( 36 )
L Rotation (30)
 30( 60, 62, 62 ) ** 30 ( 36 )
Combined (240)
 - 210 205
Comment
 Reflexes 2+ in the knees and 1+ in the ankles; no weakness or numbness *Limitation by pain; **Mechanical limitation No lumbar or sciatic notch tenderness; left SI tenderness; ROM measurements with single inclinometer
§4.71a Rating
 - 10% VA 10%

The Board directed attention to its rating recommendation based on the above evidence. The FPEB assigned a 10% rating using the analogous code 5299-5237 (lumbosacral strain) for chronic LBP evaluated as a lumbosacral strain. The VA assigned a 10% rating using code 5242-5010 (degenerative arthritis-arthritis due to trauma) for degenerative disc disease, moderate in nature L5-S1 and mild at L4-5 with facet spondylosis of the lumbar spine. The Board considered whether an additional rating could be recommended under a peripheral nerve code. Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions. Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed w ith or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no significant sensory component or motor weakness in evidence. Therefore, the radiculopathy could not be recommended for additional disability rating. The Board sought a route for a higher rating, but was unable to find one in the absence of documented episodes of incapacitation. The Board did take note of a VARD dated 21 August 2012 that increased the rating to 20% for degenerative joint/disc disease of the thoraco-lumbar spine using code 5010-5243 (arthritis due to trauma-intervertebral disc syndrome) based on a VA examination of 11 July 2012. The VARD indicated:

“The low back standing alone continues to be within a 10 percent range, however, with the addition of the upper thoracic back pain findings, the overall evaluation will be evaluated at 20%. This represents underlying X-ray/MRI findings of degenerative changes, with some limited motion and pain with use of symptoms. Reasonable doubt has been found in your favor.”

However, the Board considers VA evidence within 12 months of separation only to the extent that it reasonably reflects the disability at the time of separation. Furthermore, the Board noted that at the VA examination of 2 May 2008 the CI appeared to have an asymmetrical thoracic spine indicative of a possible levothoracic (leftward) scoliosis, the appearance of which changed at various times during the examination. However, prior and subsequent imaging studies did not support levothoracic scoliosis. The Board, well aware that an abnormal gait or spinal contour, if caused by muscle spasm or guarding, would warrant a 20% rating, noted the absence of any muscle spasm or guarding. Furthermore, the combination of “possible,” “changing,” absence of imaging documentation, and lack of a same or similar observation in any prior or subsequent examination provided insufficient objective evidence to warrant a 20% rating or to convince the Board members to reach a level of reasonable doubt IAW VASRD §4.3 or VASRD §3.102. 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.

Contended PEB Conditions: The Board’s main charge is to assess the fairness of the PEB’s determination that sleep apnea and tinnitus right ear were not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The sleep apnea and tinnitus right ear were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.

Sleep Apnea Condition. The CI underwent a sleep study on 6 September 2007 which demonstrated moderate OSA with a somewhat positional component. Weight loss, continuous positive airway pressure (CPAP), and avoidance of the supine position with sleep were recommended. Another polysomnography report dated 16 September 2007 noted no electromyographic findings and moderate snoring with 95% of abnormal respiratory events occurred while sleeping supine. Nasal CPAP pressure of 12 cm water pressure eliminated the snoring. The MEB Proceedings dated 26 November 2007 indicated that the OSA met Army retention standards. More than 7 months after separation, the CI had nasal obstruction with severe left septal deflection with 90% left nostril obstruction and inferior turbinate hypertrophy and underwent a septoplasty and bilateral submucous resection of the inferior turbinates. A VA Appeal dated 22 July 2011 indicated the CI had loud snoring and gasped for air while deployed, but denied fatigue and being tired during his after deployment examination, but had headaches, which were not checked on the Post-Deployment Health reassessment (dated 4 November 2006) or on DD Form 2807-1 Report of Medical History dated 19 September 2007.

Tinnitus of the Right Ear Condition. The CI began noticing tinnitus after he returned from mobilization when he was exposed to a great deal of gunfire, mechanical noise and generators. In January 2006 he had an episode of otitis with a tympanic membrane perforation on the right. On 14 April 2006, examination the ear drums was totally normal and the right drum moved with pneumo-pressure. An audiology note dated 6 February 2007 indicated the CI reported having a constant “humming” sound in his right ear. There was no evidence of a right perforated tympanic membrane and hearing loss was not established on the basis of that examination. A note dated 24 October 2007 indicated the CI was a right handed shooter with some right-sided tinnitus, but not enough to interfere with hearing or sleep. An MRI showed no evidence of retrocochlear (inner ear) pathology. The ENT examiner was in agreement with an audiology assessment for an H1 profile and noted the CI met retention standards in accordance with AR 40-501.

All of the aforementioned was reviewed and considered by the Board. There was no performance based evidence from the record that either of the 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 either of the 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. 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 contended sleep apnea and tinnitus of the right ear 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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131201, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record






XXXXXXXXXXXXXXX
President
DoD 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 , AR20150012725 (PD201302674)

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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