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AF | PDBR | CY2013 | PD2013 00306
Original file (PD2013 00306.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX        CASE: PD1300306
BRANCH OF SERVICE: Army         BOARD DATE: 20131003
SEPARATION DATE: 20090602


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SPC/E-4 (92Y/Unit Supply Specialist) medically separated for degenerative arthritis. The CI injured his back in June 2007 while on annual training conducting squad rushes on a rifle range. He reinjured his back on deployment training in October 2007 while loading boxes on a truck. The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The degenerative arthritis condition, characterized as chronic thoracolumbar pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded sensory paresthesia of the right foot as medically acceptable. The PEB adjudicated degenerative arthritis, T6–T10 with resultant mid thoracic back pain as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The PEB adjudicated the right foot as not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: The CI writes: “Conditions were disabling and have been found unemployable due to injury sustained on active duty. I am 100% unemployable, VA.” In block 15 of the application, the CI writes: “I have had many MRI’s training for work through vocational rehabilitation and all have found me unfit for work. I’m in constant pain and this injury has greatly effected by life and my families lives. Also on social security disability.” In an additional DD Form 294, dated 9 September 2013, CI contended “recent evaluations (worsening) and a neck condition.”


SCOPE OF REVIEW: The application was submitted in response to notification that the CI received under the Mental Health Review project. The purpose of the review is to determine whether a qualifying mental health diagnosis was changed or eliminated during the Disability Evaluation System (DES) process to the possible disadvantage of the CI. After carefully reviewing the application and DES case file, evidence was not found to substantiate that a referred condition was changed or eliminated from disability evaluation consideration to the CI’s disadvantage, which would meet the requirements for adjudication by the Special Review Panel as stipulated by the focused review criteria. The narrative summary (NARSUM) diagnosis was adjustment disorder. Although the CI reported a history of depression, in-service psychiatric MEB re-evaluation following the NARSUM concluded with “no psychiatric condition that is medically disqualifying IAW AR 40-501” and no Axis I diagnosis. There was no mental health condition listed on either the MEB or PEB.

Therefore, this application is processed strictly within the Board’s scope of review as 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 degenerative arthritis of the back and is addressed below. The requested condition of the right foot, which was determined to be not unfitting by the PEB, is likewise addressed below; 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 20090416
 VA - (5 Mos. Pre-Separation)—Effective 20080105
Condition
 Code Rating Condition Code Rating Exam
Degenerative Arthritis, T6 – T10 with Resultant Mid Thoracic Back Pain 5242 20% Thoracolumbar Spine w/ Degeneratie Disk Disease 5237 20% 20090108
Sensory Paresthesia of the R Foot Not Unfitting No VA Entry
No Additional MEB/PEB Entries
 Other x 1 20090108
Combined: 20%%
 Combined: 30%*
Derived from VA Rating Decision (VA RD ) dated 200 90224 ( most proximate to date of separation [ DOS ] ). *VARD of 20090930 increased his combined to 80%, effective 20080105 based on his depression being increased from 10 to 70%. The VA tied his depression to his back injury. VA added radiculopathy right leg, 8720 at 10%, effective 20111026.


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The DVA is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the veteran’s disability rating should the degree of impairment vary over time. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Degenerative Arthritis of the Mid Thoracic Back and Sensory Paresthesia of the Right Foot (Peripheral Nerve). The CI was initially evaluated for back pain in the primary care clinic on 20 November 2007. He reported a 5-month history of back pain that had been recently aggravated. The CI denied paresthesias at that time. The CI was evaluated and treated with muscle relaxants, non-steroidal anti-inflammatory medication, activity restrictions, heat, ice, stretching and physical therapy. The CI was cleared to return to duty on 12 December 2007. A magnetic resonance imaging (MRI) examination of the spine was performed on 25 April 2008 due to continued back pain. The MRI report noted normal spine alignment with “some” disc desiccation and disc space height loss T6-7 through T9-10 and disc space height loss with disc desiccation at T12-L1. An incidental finding of a Schmorl’s node (protrusion of disc cartilage through the vertebral body) involving T12 was also noted. No disc herniation/protrusion was noted and no neuroforaminal narrowing was present. The radiologist questioned “subtle pars defect at L5” but stated that there was normal alignment at L5-S1. The CI was evaluated by a civilian neurologist on 16 May 2008 due to right upper extremity (UE) and lower extremity (LE) pain and paresthesia. The CI also reported weakness in his right shoulder and numbness in the 4th & 5th digits in his right hand. He reported “radicular pain and paresthesias” into both LEs. The examiner noted that the CI was having pain and tenderness over his lumbar facet joints bilaterally and decreased sensation over the lateral aspect of the right foot. The examination of the UE and LE revealed normal muscle tone and bulk. Motor strength was 5/5 and sensory examination revealed decreased sensation over the 4th and 5th digit of the right hand and over the lateral aspect of the right foot. The neurologist noted that an electromyography and a nerve conduction study performed on that same day were normal. The neurologist diagnosed the CI with thoracic and lumbar spondylosis without myelopathy. An MRI was ordered to better assess for lumbosacral radiculopathy in the LEs and the neurologist recommended facet joint injections for the spondylosis without myelopathy. The CI underwent facet joint injections of the thoracic and lumbar spine on 19 May 2008. The 14 January 2009 NARSUM noted that the CI continued to report daily back pain rated 8/10 and flare-ups that occur 2- to 3-times a week rated 10/10. The flare-ups were brought on by prolonged walking, standing or lying in the prone position and relieved by rest in a supine position. It was noted that the CI reported “minimal improvement” following “numerous” injections performed by the civilian neurologist. The CI was still taking narcotic pain medication twice a day, on average. The CI also reported some relief by discontinuing the offending activity, reclining in a supine position and applying heat. The MEB physical examination noted that the CI carried a cane to “stabilize him when he has sudden twinges of pain;” the CI’s gait was normal. There was a normal spine contour with no muscle atrophy or spasm present. There was diffuse tenderness to palpitation present along the midline of the thorax. The range-of-motion (ROM) is displayed in the chart below. The examiner noted no sign of radiculopathy on examination. The straight leg raise (SLR) examination was negative and the CI was able to walk heel to toe. No pain was noted by the examiner. The motor examination was normal. No muscle atrophy was noted. Sensory examination was intact; however, the examiner reported “subjective decreased sensation to pinprick was noted along the medical aspect of the right great toe through the medical aspect of the instep and along the posterior aspect of the medial malleolus.” Deep tendon reflexes were 2/4 and symmetric.

The VA Compensation and Pension examination performed on 8 January 2009, noted that the CI continued to experience back pain and require narcotic pain medication daily. The CI had flare-ups that occurred with prolonged sitting, standing, walking, and lifting. The examiner noted that the CI experienced occasion radiation of pain down the right lateral thigh “but he denies any true radiculopathy.” The examiner also noted “subjective leg weakness” in the right LE and toe numbness on the left. The CI continued to use a cane “intermittently” with flare-ups. The examiner reported no incapacitating episodes over the prior year. The examination of the CI revealed a normal gait, normal motor strength, and no LE muscle atrophy. Sensory examination was without “appreciable sensory deficit” in the extremities. Reflexes were 1+ and symmetric in all extremities. SLR examination was positive at 45 degrees bilaterally. The ROM examination is displayed in the chart below; however, the VA examiner stated, “Please note that I did not feel the thoracolumbar spine exam was reliable. The veteran made limited effort and would not make a sustained effort for full range in my opinion.”
The goniometric 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)
 MEB ~5 Mo. Pre-Sep VA C&P ~5 Mo. Pre-Sep
Flexion (90 Normal)
 50 40
Extension (30)
 10 5
R Lat Flexion (30)
 15 10
L Lat Flexion (30)
 20 10
R Rotation (30)
 30 30
L Rotation (30)
 25 30
Combined (240)
 150 125
Comment
 Painful motion. Normal alignment; no spasm; “localized tenderness” in R thoracic paraspinal region.
§4.71a Rating
 20% 20%
The Board direct s attenti on to its rating recommendation based on the above evidence . The PEB coded the condition 5242 for degenerative arthritis of the spin e and the VA coded the condition 5237 for lumbosacral strain. Both the PEB and the VA assigned a 20% rating based on limitation of motion. ROM evidence in both proximate evaluations support ed no more than a 2 0% disability rating. There was no pathway to any higher rating under this code as ankylosis of the entire thoracolumbar spine (40%) was not present. Cod ing under 5243 (intervertebral d isc syndrome ) was considered but the absence of documented episodes of incapacitation would not attain minimum rating. Although the CI experienced radiating pain and subjective symptoms of nerve involvement (par e sthesia-sensory involvement of the right foot) , there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness. While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” There wa s no evidence in this case that there was radiculopathy with associated functional impairments sepa rately functionally impairing. 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 right foot (peripheral nerve) condition and so no additional disability ratings are recommended . 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 degenerative arthritis of the mid thoracic back 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. 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 degenerative arthritis of the mid thoracic back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended right foot (peripheral nerve) 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

UNFITTING CONDITION
 VASRD CODE RATING
Degenerative Arthritis Of The Thoracic Back Condition 5242 20%
COMBINED
 20%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130508, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SFMR-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 XXXXXXXXXXXXXXXXXXXXXX, AR20140000084 (PD201300306)


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                                                  XXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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