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AF | PDBR | CY2014 | PD-2014-00160
Original file (PD-2014-00160.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-00160
BRANCH OF SERVICE: Army  BOARD DATE: 20150205
SEPARATION DATE: 20040919


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve (temporary tour of active duty) SSG/E-6 (88H/Cargo Specialist) medically separated for low back and bilateral foot pain conditions. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The conditions, characterized as “chronic low back pain (LBP) with minimal degenerative disc disease (DDD)” and “bilateral foot pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (neck pain and seborrheic dermatitis) as not disqualifying. The Informal PEB adjudicated “chronic LBP” and “bilateral foot pain” as unfitting, rated 0% and 0% respectively referencing the US Army Physical Disability Agency (USAPDA) pain policy (bilateral foot condition). The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated.


CI CONTENTION: “My condition has gotten worst. More back pain.”


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 low back and bilateral foot 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 20040315
 VA - (~3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5237 0% Spondylosis of the Lumbar Spine with Degenerative Disc Disease 5243-5239 10% 20041229
Bilateral Foot Pain 5099-5003 0% Bilateral Foot Condition 5299-5278 Not Service Connected
Other x 2 (Not in Scope)
 Other x 1
Combined: 0%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 200 50310 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment and worsening severity with which his service-incurred condition continues to burden him. It is a fact, however, 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. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate 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 utilizes 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 authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES rating determinations for the disability existing at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability at the time of separation.

Low Back Condition. The service treatment record (STR) indicated that while deployed the CI fell backwards striking his right lower thoracic spine against a rail in June 2003. Initial evaluation revealed a para-spinal muscle strain. Upon re-deployment, Neurosurgical evaluation revealed globally decreased range-of-motion (ROM) of the back with anatomically unidentified “spasms” and “tenderness” present. His diagnosis was “mechanical LBP without neurological deficits.” X-rays of the entire spine were normal excepting mild degenerative changes in the lumbar spine. Despite physical therapy (PT) and medication, his back pain continued and he was referred for an MEB. The permanent profile of November 2003 listed LBP as one of three diagnoses. The commander’s statement implicated the three profiled conditions.

At the MEB narrative summary (NARSUM) performed on 8 December 2003 (10 months prior to separation), the CI endorsed constant 8/10 LBP aggravated with sitting, standing, prolonged walking, bending, lifting, or upon impact activity. He also endorsed the ability to perform all activities of daily living (ADLs). The examiner noted, “He will likely continue to have LBP with physical activities and especially with military duties and activities.” The physical examination (PE) revealed a slow and hesitant gait. There was spinal and para-spinal tenderness throughout the entire spine. PT measured thoracolumbar ROM was significantly limited due to pain. The diagnosis was chronic LBP with minimal DDD.

At a VA Compensation and Pension (C&P) examination performed on 29 December 2004 (3 months after separation), the CI reported constant spinal pain extending from the neck, back, and right leg. The pain is described as sharp, aching and cramping which is relieved with rest and anti-inflammatory medication. The examiner noted the CI’s ability to perform some ADLs, but specifically listed his inability to “…vacuum, climb stairs, take out trash, perform gardening activities, and push a lawn mower due to pain and fatigue.” His functional impairment was listed as “pains when turning head left or right.” The PE revealed minimal and painful decrease in thoracolumbar flexion of 85 degrees (normal = 90 degrees). All other exam parameters were normal. 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.
DOS 20040919
Thoracolumbar ROM
(Degrees)		 PT/MEB ~ 9 Mo. Pre-Sep
(200312 10 )
VA C&P ~3 Mo. Post-Sep
(20041229)
Flexion (90 Normal) 26/22/21 ( 25) 85
Extension (30) 13/14/12 (15) 30
R Lat Flexion (30) 7/7/7 (5) 30
L Lat Flexion (30) 12/14/15 (15) 30
R Rotation (30) 30/28/31 (30) 30
L Rotation (30) 30/32/32 (30) 30
Combined (240) 120 235
Comment painful motion painful motion
§4.71a Rating 40% 10 %

The Board directed attention to its rating recommendation based on the above evidence. Although the Service and VA titled the unfitting back condition differently, they both utilized (in various combinations) similar codes of 5237 (lumbosacral strain) by the PEB at 0% and a dual code of 5243-5239 (DDD-spondylolisthesis) by the VA at 10% citing limited ROM.

The Board first turned their attention to the vast differences in the ROM parameters as seen in the 12 month prior to and after separation and agreed that such an improvement was likely and predictable in the setting of a mechanical back condition without neurologic involvement and only mild evidence of DDD. The probative value in this case was therefore exclusively directed to the VA examination as it provided a nearer time reference to service separation. Board members then agreed that sufficient evidence of painful motion was present near the time of separation to justify a 10% rating IAW Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.59 (painful motion).

Additionally, the Board considered application of §4.40, which allows for a higher rating if evidence of additional functional loss is present. Member’s concluded however that there was no examination in evidence on which to base a conclusion that repetitive motion resulted in any additional disability. There also was no evidence of a ratable neurologic impairment or documentation of incapacitating episodes in this case which would provide for additional or higher rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the low back condition.

Bilateral Foot Condition. The STR contained a paucity of clinical documents with regards to his bilateral foot condition. While deployed, an ice chest fell directly on the top of his feet in June 2003. He was diagnosed with bilateral foot contusions (bruising). Two weeks after his accident, his X-rays were reported as “normal” and he was able to wear his military boots. Three months post injury, repeat X-rays noted mild degenerative changes and or post-traumatic changes in both feet.

At the MEB NARSUM, the CI endorsed constant 7/10 bilateral foot pain made worse with sitting, standing, prolonged walking, bending, lifting, or upon impact activity. He continued to maintain the ability to perform all ADLs. His PE noted tenderness to the inside of both feet. There was “mild bunion deformity present,” but not identified as to one foot or the other. The examiner noted full “passive” ROM of the feet, but active measurements were not documented.

At a VA C&P examination, the CI reported bilateral foot pain and swelling while at rest and pain, weakness, and fatigue when standing, or walking. He also endorsed using a cane for “distance walking” due to pain. His PE revealed bilateral hallux valgus (bunion) with moderate angulation with no evidence of surgical intervention. There was no evidence of tenderness, weakness, edema, atrophy or disturbed circulation to either foot. He displayed no limitation with standing or walking.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition analogously under VASRD code 5099-5003, and invoked the USAPDA pain policy as the basis for its 0% rating. The VA rated the condition analogously under VASRD 5278 (claw foot; acquired), as “Not Service Connected” citing no permanent residual or chronic disability present. IAW VASRD §4.71a, the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved. When the Board judges that two or more separate ratings are possibly warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting and Service ratable in and of itself. Members first deliberated if the bilateral foot condition was reasonably justified as separately unfitting. The Board deliberated if the CI’s bilateral feet condition were at a level of severity as to prevent performance of his military duties.

The clinical evidence reflected that each foot remained equivalent in its findings and pathology as indicated by the diagnosis of bilateral contusions. Although it remained speculative to conclude that the disability separately confined to either foot would have rendered the CI incapable of performing within his MOS, Board member consensus was that it was reasonable to surmise that the effect of both painful feet was what rendered him with intractable pain and therefore, unfit for continued military service. The evidence indicated minimal impairment to his feet without satisfactory demonstration of impaired walking or standing. In light of positive, X-ray findings, a bilateral diagnosis is supported under code 5003. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the bilateral foot 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. As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the feet was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board. In the matter of the back condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a. In the matter of the bilateral foot condition and IAW VASRD §4.71a, the Board unanimously recommends a combined disability rating of 10%, coded 5099-5003. 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
Lumbar Spine Condition 5237 10%
Bilateral Foot Condition 5099-5003 10%
COMBINED (w/ BLF) 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131221, 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, AR20150010397 (PD201400160)


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 20% 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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