RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200649 SEPARATION DATE: 20020417 BOARD DATE: 20130418 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (62B/Heavy Equipment Repair) medically separated for low back pain (LBP). The CI injured his back in 1992. He was treated, but did not improve adequately to fully perform his military duties or meet physical fitness standards. He was issued a permanent P2/L3 profile and underwent a Medical Evaluation Board (MEB). The MEB forwarded lumbar degenerative disk disease (DDD) and postsurgical pain from left iliac crest site to the Physical Evaluation Board (PEB) IAW AR 40-501, and no other conditions were submitted by the MEB. The Physical Evaluation Board (PEB) combined the two MEB conditions and found the CI unfit for military service due to back pain and moderate limitation of lumbar range-of-motion (ROM). The unfitting condition was rated 20%, with likely application of the Veteran’s Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 20% disability. CI’s CONTENTION: The CI states: “I had back surgery which I had my L4-L5 cage fusion was done on my back. It caused me to give up on my career. I had 14 years in. My condition caused me to lose my way of life. I can’t move without my legs going out and I am in a wheel chair since I have gotten out of the military. I am now wearing Depends because the back surgery has made me lose my bladder control. I have to take Viagra. I have to take pain medicine all the time. I cannot [expletive deleted] like I did when I joined the military. I was going to stay in and retire until I hurt my back. But since then it has been a living hell.” SCOPE OF REVIEW: The Board’s scope of review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2), is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The unfitting back condition (back pain and moderate limitation of range of motion of the lumbar spine) meets the criteria prescribed in DoDI 6040.44, and is accordingly addressed below. No other condition is within the Board’s purview. Any condition outside the Board’s defined scope of review may be eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Army PEB – dated 20011211 VA (2 & 3 mos. Pre-Separation) – All Effective 20020418 Condition Code Rating Condition Code Rating Exam Back Pain and Limited Lumbar Range of Motion 5292 20% Post-Operative Residuals, Lumbosacral Spine 5293 60% 20020128 .No Additional MEB/PEB Entries. Cervical Strain 5290 30% 20020128 Neurogenic Bladder 7542 20% 20020128 TMJ Syndrome w/Malocclusion 9905 10% 20020222 Bilateral Tinnitus 6260 10% 20020130 0% X 3 / Not Service-Connected x 1 20020128 Combined: 20% Combined: 80% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him, and the significant impact they have had on his quality of life. It is noted for the record that the Board is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation. The DVA, however, is empowered to compensate for service-connected conditions and to periodically re- evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time. Low Back Pain (LBP). The CI developed LBP in 1992. Initially he was treated conservatively with physical therapy (PT) and medication, but his LBP persisted. In August 1998, he underwent back surgery, with spinal fusion of L4-L5 using bone cages and pedicle screws. Post-operatively he continued to have LBP. On 17 July 1999, the CI was seen by neurosurgery. The neurological examination was essentially normal. Station and gait were normal, and the CI was able to heel and toe walk. The examiner stated, “In summation, the patient lacks objective findings on his physical examination, but clearly demonstrates subjective pain.” In March 2001, the CI underwent a Urological work-up due to his urinary symptoms and erectile dysfunction (ED). A voiding study showed sensation was intact, and bladder compliance was normal, with no evidence of detrusor sphincter dysinertia (DSD). The CI was referred to the Pain Management Clinic at Walter Reed Army Medical Center. Several different treatment options were tried, but his LBP continued. Because of persistent problems with LBP, an MEB was initiated. His MEB clinical evaluation was on 10 October 2001. Examination revealed some tenderness to palpation (TTP) over the lower lumbar spine, but there were no signs of spinal deformity. Reflexes and muscle strength were normal. Sensation was decreased to pinprick and light touch over the dorsolateral aspect of the right foot. Straight leg raise (SLR) was negative. Electromyography (EMG) on 24 October 2001 showed no evidence of lumbar radiculopathy. On 28 January 2002, 3 months prior to separation, the CI had a VA Compensation and Pension (C&P) exam. The CI reported severe LBP at rest. Exam of the lower back revealed painful motion and tenderness to palpation (TTP). There was no tenderness of the posterior iliac crest bilaterally. SLR was positive for both right and left legs. Pain increased with dorsiflexion of each foot. Leg length was equal bilaterally. There was decreased sensation to light touch at both feet. Posture was limited due to pain in the lower back. Gait was abnormal. He was using a cane for support while walking. He could not toe or heel walk, secondary to pain at the lower back. Pulses were 2+ and equal in the lower extremities. Motor function was within normal limits for both lower extremities. He had severe pain in the lower back with muscle strength testing. Deep tendon reflexes were symmetric bilaterally. There was markedly reduced ROM at the lumbar spine. The two ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below. Thoracolumbar ROM MEB ~6 Mo. Pre-Sep (20011010) VA C&P ~3 Mo. Pre-Sep (20020128) Flexion (90° Normal) 30° 10° Ext (0-30) 10° 5° R Lat Flex (0-30) 10° 20° L Lat Flex 0-30) 10° 20° R Rotation (0-30) 15° L Rotation (0-30) 15° Combined (240°) 85° Comment + Tenderness; spasm; abnormal gait + Tenderness; painful motion in all directions; gait abnormal; walks w/cane The Board carefully reviewed all of the evidentiary information available, and directs attention to its rating recommendation based on the above evidence. The Army PEB and the VA used different coding and rating options for the LBP condition. The PEB coded it 5292 and assigned a rating of 20% (moderate limitation of lumbar motion). The VA used code 5293 (Intervertebral disc syndrome) and rated it 60%. The VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were modified in September 2002, and then were changed again in September 2003. The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment. IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation from service. The Board noted the disparity between the two ROM exams. Forward flexion was only 10 degrees at his January 2002 C&P exam. However, there were certain inconsistencies in that C&P exam, which caused the Board to question its validity and probative value. A 10 degree limitation of forward flexion would almost preclude some activities of daily living (ADLs) such as sitting in a chair, or riding in a car. The record does not indicate that the CI was unable to sit in a chair or ride in a car. In fact, the record states that he was able to drive for about an hour. Furthermore, a sitting blood pressure was taken, proving that he was able to sit in a seated position. The Board determined that these inconsistencies caused some diminution in the validity and probative value of the January 2002 C&P exam. Based on the evidence in the service treatment record (STR), the Board determined that IAW VASRD §4.71a, the diagnostic code which most closely aligns with limited lumbar motion is 5292 (Spine, limitation of motion of, lumbar). Under code 5292, the rating levels are: 10% for slight, 20% for moderate, and 40% for severe. Following a thorough review of the record, the Board unanimously agreed that the CI’s chronic back pain condition was best described as “moderate.” There was insufficient evidence to support classifying the condition as “severe.” After due deliberation, the Board determined that a separation disability rating of 20% was warranted, due to the moderate lumbar motion impairment. The Board tried to find a path to a rating higher than 20%, using other codes which could be applied to the chronic back pain condition. The other VASRD codes that were considered did not result in a rating higher than 20%, since the STR did not show sufficient evidence of a disabling lumbar spine abnormality which would justify a rating higher than 20%. Considering all of the evidence and mindful of VASRD §4.3 (resolution of reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back pain 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. In the matter of the back pain condition, the Board unanimously recommends no change in the PEB adjudication, IAW VASRD §4.71a. 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 Back pain, and moderate limitation of lumbar range of motion 5292 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120503, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxx, DAF Director of Operations Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxx, AR20130009545 (PD201200649) 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 xxxxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)