RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200763 SEPARATION DATE: 20030703 BOARD DATE: 20130213 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (52D10/Power Generation Mechanic), medically separated for chronic low back pain (LBP). The CI’s back condition did not improve adequately with treatment 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. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the chronic LBP condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “I have constant lower back pain that I have to deal with. Can’t take meds until I get off because they make me sleepy, and I can’t sleep on the job.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 (4.a) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; and, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” 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 Army Board for Correction of Military Records. RATING COMPARISON: Service PEB – Dated 20030328 VA (~9 Mos. Post-Separation) – All Effective Date 20030704 Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain 5299-5295 10% Chronic Mechanical Low Back Pain 5237 10%* 20040324 .No Additional MEB/PEB Entries. Not Service-Connected x 2 20040324 Combined: 10% Combined: 10% *VA rated in accordance with updated spine guidelines that became effective after separation. ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans’ Affairs (DVA) but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), 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’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. Chronic Low Back Pain Condition. The CI first reported the gradual onset back pain, with unknown etiology, commencing after running an obstacle course in March, 2001, within the first year of his enlistment. Although the pain was exacerbated by a minor motor vehicle accident in November 2001, but there was no indication that the condition was ever more than musculoskeletal back pain. Radiographs were normal. There was one reference to transient involvement in the left L5 nerve root on orthopedic examination 18 October 2001; however, all subsequent examinations demonstrated no evidence of this finding and a magnetic resonance imaging (MRI) was reported to be negative. Subsequent medical records noted occasional observations of antalgic gait and limitation of motion due to pain. The MEB narrative summary (NARSUM), dictated 6 December 20002, documents his complaint of lumbosacral pain, exacerbated by activities, without symptoms suggestive of radicular involvement, and not responding to conservative therapy. At that time, physical examination revealed paralumbar tenderness to palpation, and “functional” range-of-motion (ROM) with pain induced by lumbar extension only. Straight leg raising (SLR) was negative for radicular symptoms, and lower extremity strength and reflexes were normal. A clinic encounter on 2 January 2003 documented “decreased” flexion and extension due to pain. Gait was normal, SLR was negative, and strength and reflexes were normal. A physical therapy examination performed on 18 February 2003 recorded goniometric ROM after five repetitions as flexion 50 degrees, extension 25 degrees, lateral bending 25 degrees bilaterally, and rotation 30 degrees bilaterally. A 30 May 2003 clinic visit documented increased LBP without radiation due to recent heavy lifting. ROM was recorded as normal, and gait as slightly ataxic. Signs of radiculopathy were absent. A 25 June 2003 clinic encounter recorded decreased extension due to pain without mention of decreased flexion. A 1 July 2003 clinic encounter for a hand injury noted the CI was involved in a fight 3 weeks previously. No mention of back pain is made in this clinic encounter. On 24 March 2004, he underwent a VA Compensation and Pension (C&P) examination, 9 months after separation. ROM was flexion 80 degrees, extension 20 degrees, lateral bending 20 degrees bilaterally, and rotation 20 degrees bilaterally. There were no signs of radiculopathy. The general medical C&P examination, on the same date, documented normal gait and posture with normal neurologic examination. The Board directs attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2002 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards effective 26 September 2003. The Board must correlate the above clinical data with the 2002 rating schedule, for which the applicable diagnostic codes include 5292 (limitation of lumbar spine motion), 5293 (intervertebral disc syndrome), and 5295 (lumbosacral strain). The PEB rated the low back pain condition 10% based on pain with motion under the 5295 code for lumbosacral strain in the VASRD guidelines in effect at the time of separation. The VA rated the condition 10%, using code 5237 (lumbosacral strain), based on the post separation VA examination using the current VASRD guidelines that became effective after the CI’s separation. The Board first considered the rating under the code, 5295, lumbosacral strain used by the PEB. All members agreed the preponderance of evidence did not support a rating higher that the 10% rating assigned by the PEB. There was no muscle spasm, unilateral loss of side bending, or marked limitation of motion which would have met criteria for the next higher rating. The Board noted that there was no evidence of intervertebral disc syndrome nor any incapacitating episodes to warrant consideration under 5293, intervertebral syndrome. The Board next considered the rating under the VASRD diagnostic code 5292 (limitation of lumbar spine motion). The Board noted the physical therapy examination of February 2003 recorded a moderate limitation of motion supportive of a 20% rating under code 5292. However the MEB NARSUM examination noted “functional” motion suggesting only slight impairment in motion. A May 2003 clinic encounter recorded normal ROM. Following separation, the C&P examination ROM examination more nearly approximated the 10% rating. The Board discussed the apparent waxing and waning nature of the CI’s back condition and considered the overall disability picture as reflected in treatment records. The Board concluded that the preponderance of evidence more nearly approximated the 10% rating. There was no associated radiculopathy for separate peripheral nerve 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 adjudication for the LBP 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 chronic low back 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 5299-5295 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120612, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director, Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxx, AR20130005536 (PD201200763) 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 xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)