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AF | PDBR | CY2013 | PD-2013-02797
Original file (PD-2013-02797.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxx  CASE: PD-2013-02797
BRANCH OF SERVICE: Army  BOARD DATE: 20150724
SEPARATION DATE: 20070108


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Transport Operator) medically separated for chronic lumbar and cervical pain. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent P2U3L3E1 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded “low back and cervical pain with evidence of cervical and lumbar disk disease…” to the Physical Evaluation Board (PEB) as not meeting retention standards IAW AR 40-501. The MEB also identified and forwarded “toxoplasmosis with retinal scaring and mild vision acuity loss, right eye” as meeting retention standards. The Informal PEB adjudicated “chronic lumbar back pain” and “chronic cervical pain” as unfitting rated 0% and 0% respectively, with likely application of AR 635-40. The toxoplasmosis condition was found to be not unfit. The Army Physical Disability Agency (USAPDA) issued an administrative correction to the finding, changing the disability code from a spine code to an analogous spine code for both unfitting conditions, and rating each condition at 10% respectively, for a combined disability rating of 20%. The toxoplasmosis condition remained not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “Conditions was worse then rated and I wasn’t rated at all for ocular toxoplasmosis with bilateral hole and chorioretinitis with right eye macular chorioretinal scar”. [sic]


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 Veterans Affairs Schedule for Rating Disabilities (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 :

USAPDA Admin Corr IPEB – Dated 20061211
 VA* - (~2 Mos. Pre and 4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Lumbar Back Pain 5299-5237 10% Lumbar Spine DDD and DJD 5242 10% 20061115
20070508
Chronic Cervical Pain 5299-5237 10% Cervical Spine DDD and DJD 5242 10% 20061115
20070508
Toxoplasmosis…Right Eye Not Unfitting Bilateral Retinal Hole and Chorioretinitis with Right Eye Macular Chorioretinal Scar 6099-6006 0%* 20061115
20070530
Other x 0 (Not In Scope)
 Other x 3
RATING: 20%
 RATING: 20%
* Derived from VA Rating Decision (VA RD ) dated 200 70202 (most proximate to date of separation ( DOS ) ) .
VARD 20070803 increased DC 6099-6006 to 10% effective 20070109. VARD 20111201 increased Lumbar Spine DC 5242 to 40% effective 20100831; and increased Cervical Spine DC 5242 to 20% effective 20100903.


ANALYSIS SUMMARY:

Chronic Lumbar Back Pain. The narrative summary (NARSUM) noted onset of neck and back pain in September 2005 associated with military truck driving and possible football injury. The low back pain had “intermittent radiation into his legs, sometimes causing their collapse and his falling. He attributes this to pain avoidance rather than actual weakness.” There was insufficient relief with conservative measures (physical therapy [PT] including TENS and epidural injection). The CI “began using crutches in March 2006 and has continued because he is afraid that his knees will give out on him, as has happened in the past, approximately 2-3 times in an active week.” The CI had been on quarters for 3 days. Medications included narcotic and non-narcotic pain medication and a muscle relaxant which did not completely resolve the back pain. Thoracic spine X-rays were normal. Lumbar MRI indicated mild central canal stenosis with degenerative disk disease, annular tears and bilateral neuroforaminal (nerve outlet area) narrowing. The CI was not a surgical candidate per specialist evaluations.

Spine and Neurosurgery exam on 21 April 2006 was significant for complaints of “using crutches because low back is so painful,” and pain radiating into the backs of the legs and feet with “not able to tell top from bottom” (paresthesia). There were no bowel or bladder symptoms. Exam was significant for low back spasm with any motion, non-dermatomal (not aligned with a specific nerve) loss of sensation in the left lower extremity greater than the right. There was normal lower extremity motor strength with cogwheel weakness in the bilateral lower extremities [indicating non-muscle (pain) limitation] without muscle wasting or atrophy. Reflexes were normal and Waddell signs were graded at 4/5 (non-physiologic findings). The MEB physical exam noted tenderness and referenced the specialist exam (above). The cited PT goniometric range-of-motions (ROM) were forward flexion of 45 degrees (normal 90) and combined of 150 degrees (normal 240) with painful motion.

At the VA Compensation and Pension (C&P) exam performed 2 months before separation the CI reported constant low back pain radiating to both lower extremities without numbness or tingling. He stated he used crutches 90% of the time due to instability, and had greatly limited activities and had to use a motorized chair at the commissary to shop. Exam documented spine tenderness, with no spasm. The CI walked using two crutches. He was able to walk on heels and toes, but only while maintaining balance with his left hand on an elevated desktop. Leg strength was normal (5/5) with subjective weakness of 3/5 due to pain. Right straight leg raise testing was positive (for radiating symptoms). Neurologic exam was normal. The CI did not report for ROM testing until the C&P exam 4 months after separation. At this second VA exam the CI reported daily back pain of 7/10 intensity with minimal to no relief on anti-inflammatory medication. He related being on quarters 3-4 times for back pain and did not wear a brace. He stated that he required assistance from his wife to dress and undress, putting on shoes and socks because of difficulty bending over. Exam documented normal gait and posture with painful lumbar ROM of forward flexion to 70 degrees (normal 90) and combined 150 degrees (normal 240). There was no additional limitation with repetition related to pain, fatigue, incoordination, weakness or lack of endurance. The lumbar spine was tender without muscle spasm or weakness. The CI had a positive Lasegue’s sign on the right (for radicular symptoms) and multiple positive Waddell tests (non-organic physical signs). The diagnosis was degenerative disc disease with degenerative joint disease lumbar spine. VA evidence remote from separation indicated increased VA rating for the back effective in 2010.

The Board directed its attention to its rating recommendation based on the above evidence. The PEB disability description cited passive ROMs that indicated likely application of AR 635-40 as VASRD ratings use active ROMs. The active ROM limitation from the Service exam (forward flexion of 45 degrees) would warrant a 20% rating based on “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.” The CI’s use of crutches was discussed by the Board as possibly guarding with an abnormal gait (also a 20% rating criteria). The PEB and VA exams documented significantly different ROMs with implications for rating and the Board considered the probative value of both exams. The Service exam was closest to the date of separation and the VA post-separation exam was considered less detailed. The Service ROM exams were closest to separation and the Board adjudged that the Service exam had the highest probative value for rating at the time of separation. The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with 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.” The Board considered the CI’s non-organic findings, functional loss and abnormal gait/use of crutches and balance issues and found no path to any rating higher than the 20% for ROM limitation. The Board considered whether additional Service rating could be recommended under a peripheral nerve code for the subjective decreased sensation in the lower extremities (radiculopathy); but there were no significant objective finding s and no functional link to fitness in evidence. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition.

Chronic Cervical Pain. The narrative summary (NARSUM) noted onset of neck and back pain in September 2005 associated with military truck driving and possible football injury. At the MEB exam, the CI reported neck pain radiating down into muscles between shoulder blades. The MEB physical exam noted cervical spine tenderness and referenced the PT ROMs. PT ROMs were forward flexion 35 degrees (normal 45) and combined 220 degrees (normal 340) with pain on motion. There was no evidence of upper extremity peripheral nerve involvement. MRI of the cervical spine showed mild central canal stenosis and neural foraminal narrowing with degenerative joint disease at multiple levels.

At the VA C&P exams performed 2 months before and 4 months after separation, the CI reported neck pain and functional impairment. Cervical ROM was painful and limited to 40 degrees forward flexion and combined 300 degrees. MRI documented a herniated disc and osteophytes (arthritic bony changes) and the examiner diagnosed multi-level cervical spine degenerative disc disease and degenerative joint disease. VA evidence remote from separation indicated increased VA rating for the neck effective in 2010.

The Board directed its attention to its rating recommendation based on the above evidence. All exams proximate to separation documented tenderness or painful motion, with active ROMs within the 10% rating criteria of “forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees.” There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour to warrant a rating higher than 10%. There was no evidence of any upper extremity peripheral nerve residuals for additional 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 rating for the cervical pain condition.

Contended PEB Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that right eye toxoplasmosis with retinal scaring was 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 CI had toxoplasmosis since 1994 which was successfully treated and stable. He had slight residual vision loss in the right eye due to chorioretinal scar and had retinal holes in both eyes without retinal detachment. Distant visual acuity was near normal (right of 20/25+ and left of 20/20-) and near visual acuity was decreased to 20/60 in the right eye and normal in the left eye (20/20). The right eye condition was not profiled (E1) or implicated in the commander’s statement and was not judged to fail retention standards. The eye condition was reviewed and considered by the Board. There was no performance based evidence from the record that the eye condition 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 eye condition and so no additional disability rating is 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 AR 635-40 for rating the low back and neck conditions was likely operant in this case and the conditions were adjudicated independently of that instruction by this Board. In the matter of the lumbar back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a. In the matter of the cervical pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended right eye condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION VASRD CODE RATING
Chronic Lumbar Back Pain 5299-5237 20%
Chronic Cervical Pain 5299-5237 10%
COMBINED 30%









The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131217, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record




XXXXXXXXXXXXXXXXXXXX
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 xxxxxxxxxxxxxxxxxxxxxxxxxx , AR20150012824 (PD201302797)


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 30% effective the date of the individual’s original medical separation for disability with severance pay.

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 severance pay.

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

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

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


                 

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