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AF | PDBR | CY2013 | PD2013 00009
Original file (PD2013 00009.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1300009
BRANCH OF SERVICE: army  BOARD DATE: 20130613
SEPARATION DATE: 20020923


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (71L/Administrative Specialist) medically separated for chronic low back and chronic right ankle conditions. The CI initially reported low back pain (LBP) in 1992. She was evaluated and treated and was later treated minimally in 1995 and 1997. In 1999 she injured her right ankle and began reporting her recurring back pain. She was treated conservatively for both injuries but the conditions 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 permanent L3 profile and referred for a Medical Evaluation Board (MEB). The chronic low back and right ankle conditions, characterized as “lumbar spondylosis, chronic low back pain” and “ankle arthritis after fracture” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “chronic low back pain with herniated nucleus pulposus…” and “chronic pain right ankle status post fracture” as unfitting, rated 10% and 0% respectively referencing the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “I believe I should have been considered for medical retirement versus being medical discharged with severance pay.”


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 chronic low back and right ankle conditions are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20020604
 VA - (1 Mo. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain… 5293 10% Degenerative Joint Disease with Degenerative Disc Disease, Lumbar Spine w/Herniated Nucleus Pulposus, at L1-2 and L4-5 5292 10% 20020828
Chronic Right Ankle Pain… 5099-5003 0% Residuals of Fracture, Lateral Malleolus, Right Ankle, w/DJD and Achilles Tendonitis 5099-5010 0% 20020828
No Additional MEB/PEB Entries
 Other x 4 20020828
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 21004 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Low Back Condition. The narrative summary (NARSUM) notes that the CI first sought treatment for LBP in March 1992. Attempts to treat it with physical therapy and later with transcutaneous electrical nerve stimulation and traction were unsuccessful. In September 2000, she injured her right ankle and following that, she experienced increased back pain which then limited her ability to function within her MOS. A magnetic resonance imaging (MRI) performed in 2001, showed degenerative joint disease at T12-L1, L1-L2, L4-L5, and herniated nucleus pulposus (HNP) at L1-L2 and L4-L5. The herniated discs were noted to be mild and not compromising the neural foramina or any neural structures. In January 2002, she was put on a permanent L3 profile and referred to the MEB. At the MEB exam, performed about 5 months prior to separation, the CI reported pain located in her sacroiliac joint (SI) joint on the left and bilateral lower back pain. She was taking no medications at the time. The MEB physical exam noted mild tenderness to palpation (TTP) at the bilateral lower lumbar area and the left SI joint. Range-of-motion (ROM) measurements were as summarized in the chart below. With regard to her functional status at the time of the MEB, the patient felt that she was able to complete all MOS requirements of an Administrative Specialist with the exception of any of those involving field duties and physical training. At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported 7-9/10 constant pain in her back aggravated by normal daily activity. She had been trying to manage pain by avoiding activities that caused it but when it occurred, she sometimes experienced radiation in the right hip. ROM’s were as summarized in the chart below with pain documented with movement in all directions.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria are:
Back ROM *
(in Degrees)
 MEB ~5 Mo. Pre-Sep
(20020425)
VA C&P ~1 Mo. Pre-Sep
(20020828)
Flexion (90 Normal)
 90 90
Extension (30)
 15 unk
R Lat Flexion (30)
 25 35
L Lat Flexion (30)
 25 35
R Rotation (30)
 25 30
L Rotation (30)
 25 30
Combined (240)
 205 unk
Comment : *”Normals” from 2004 VASRD
T enderness; negative SLR; nervous, sensory and motor functions normal Tenderness ; positive SLR; p ain on motion
§4.71a Rating
 10% 10%

The Board directs attention to its rating recommendation based on the above evidence; noting that the CI was separated on the date that a significant change in VASRD codes and criteria for the spine became effective (changed code 5293). The older VASRD codes and criteria were likely applied to rating by the PEB, and the newer (interim) codes and criteria were in effect for the VA ratings and at the time of separation. The Board’s recommendation, IAW DoDI 6040.44, must be premised on the VASRD in effect at separation; although, the PEB exam remains probative to the Board’s recommendation under the applicable VASRD criteria. The 23 September 2002 VASRD coding and rating standards for the spine (effective at separation) differ significantly from the current §4.71a (general rating formula for the spine), (effective for VA rating). The applicable coding options for this case are excerpted below:
Interim Spine Rules from 23 September 2002 - 25 September 2003

5291 Spine, limitation of motion of, dorsal:
Severe........................................................ 10
Moderate...................................................... 10
Slight........................................................ 0

5292 Spine, limitation of motion of, lumbar:
Severe ........................................................................................40
Moderate ...................................................................................20
Slight ...........................................................................................10

5293 Intervertebral disc syndrome:
Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under §4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.
With incapacitating episodes having a total duration of at least six weeks during the past 12 months .................................................................................60
With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ...........................................40
With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ...........................................20
With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ...........................................10
Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. …

5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.......................................................40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position...............20
With characteristic pain on motion............................ 10
With slight subjective symptoms only.......................... 0

The PEB characterized the back condition as chronic LBP with HNP at the L1-L2 and L4-L5, with characteristic pain on motion, without neurologic abnormality. Referring to the old spine rules in effect at the time the PEB was convened (but superseded on the actual date of separation, 23 September 2002), it coded the condition 5293 (intervertebral disc syndrome) and awarded a rating of 10% (mild symptomatology compatible with: sciatic neuropathy), using wording from code 5295 “with characteristic pain on motion.” The VA using the newer interim spine rules, coded the condition as 5292 (limitation of motion of the lumbar spine) and citing painful motion, awarded a rating of 10%. Both the service and VA and exams measured “back” ROMs and did not distinguish between the dorsal (thoracic) and lumbar spine segments. There was no evidence of dorsal spine limitation of motion greater than “slight” (0%) in any exam and back symptoms were appropriately considered under the lumbar spine segment. The Board noted that the MEB exam revealed slight limitation of movement and the VA exam and PEB supported pain with motion.

The Board concluded that the CI’s disability picture at the time of separation warranted a 10% rating for the low back condition and discussed coding options. The use of codes 5292 or 5295 was considered ideal as there was no evidence of incapacitating episodes (5293); however, the application of VASRD §4.59 (painful motion) for awarding a 10% rating under code 5293 (the PEB coding) was considered acceptable, and changing the coding offered no benefit to the CI. 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 low back pain condition.

Chronic Right Ankle Condition. As mentioned above, the NARSUM notes that the CI injured her ankle in September 2000. At that time, she sustained an ankle fracture of the lateral malleolus, nondisplaced. The discomfort from the ankle fracture improved and she was released from orthopedics in November 2000. However, it had not completely resolved and she returned to her Troop Medical Clinic in February 2001 with continued pain. An MRI at that time showed a questionable tear of the anterior talofibral ligament and possible osteochondritis dissecans (OCD) of the talus. A bone scan also showed possible OCD of the talus, however, an orthopedic consult subsequently noted no evidence of osteochondral defect and the CI was diagnosed with chronic ankle pain status post trauma. At the MEB exam, the CI reported continued pain. The MEB physical exam noted pain in the area of the distal fibula and tibia of the right leg but there is no mention of abnormal ROM. At the C&P exam performed a month prior to separation, the CI reported that she was experiencing constant 7/9-10 pain aggravated by normal daily activity. She had been treating it with heat and aspirin, which she said helped very little. She reported not being able to stand for greater than 20 minutes and was unable to do any running or walk more than one mile. ROM was recorded as: dorsiflexion to 20 degrees (of 20 degrees) and plantar flexion to 45 degrees (of 45 degrees). There was TTP, ankles were described as stable, and gait was normal.

The Board directs attention to its rating recommendation based on the above evidence. The PEB characterized the condition as “chronic pain, right ankle, status post ankle fracture. Pain rated as slight/occasional,” and coded it analogously as 5099-5003 (arthritis, degenerative). Citing the USAPDA pain policy, it assigned a disability rating of 0%. The VA characterized the ankle pain as “residuals of fracture, lateral malleolus” and coded it analogously as 5099-5010 (arthritis due to trauma); citing normal ROM and no painful motion, it assigned a disability rating of 0%. The Board considered that under both of these coding options, disability is rated based on limitation of motion. Given the normal ROM’s demonstrated on the VA exam which was proximal to the date of separation, and the lack of documentation of painful motion, the Board agreed that no higher than a 0% rating could be assigned. 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 right ankle pain condition. The Board concluded therefore that this condition could not be recommended for additional disability rating.


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 chronic right ankle pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic right ankle pain 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Low Back Pain with Herniated Nucleus Pulposus at L1-L2 and L4-L5 5293 10%
Chronic Pain right Ankle Status Post Ankle Fracture 5099-5003 0
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130103, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130019925 (PD201300009)

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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