RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200947 SEPARATION DATE: 20040105 BOARD DATE: 20130307 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (52C10/Air Condition Technician), medically separated for “chronic low back pain due to lumbar disc disease, without neurologic abnormality.” Early in 2002 he experienced sudden low back pain (LBP) while dragging a heavy cable. He had a magnetic resonance imaging (MRI) exam of the lumbar spine which showed a small annular tear and disc bulge at LS1. He was seen by orthopedics and the assessment was that he does not need surgery and that the MRI findings were not sufficient to warrant this procedure. Conservative management was recommended and permanent profile indicated no stooping, bending, or crawling, limit runs and situps. The CI had no duty restrictions placed on him due to his medical condition, and was limited to alternate Army Physical Fitness Test (APFT). He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated chronic LBP due to lumbar disc disease, without neurologic abnormality as unfitting, rated 10%. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “After my lower back surgery conditions of my leg got worse, numbness of leg sometimes makes it hard to drive. And I feel as though I can’t always do things my job often requires of me. I do well to go to work every day.” 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. Ratings for unfitting conditions will be reviewed in all cases. The contended leg numbness is considered a contention for an unfitting and rated peripheral neurologic abnormality and will be addressed below, as part of the CI’s unfitting chronic low back pain condition. 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 IPEB – Dated 20031006 VA - VARD 20060113 (most proximate to Date of Separation -3 yrs post) Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain due to Lumbar Disc Disease, without Neurologic Abnormality 5243- 5299- 5237 10% Lower Back, Disc Condition 5243 0%* STR Combined: 10% Combined: 0% * VARD 20070829 increased 5243 to 20% based on 20070620 exam, effective 20070604 ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board wishes to clarify that it 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 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 (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. The Board further acknowledges the CI’s contention for ratings for other conditions documented at the time of separation, and notes that its recommendations in that regard must comply with the same governance. Chronic Low Back Pain Condition. The narrative summary (NARSUM) notes that the CI had back pain that was unresponsive to conservative measures. Surgery was not recommended. At the MEB exam, the CI reported back pain that radiated to both thighs. His pain was aggravated by heavy lifting and bending. He was taking pain medication 2-3 times per week and occasional Ibuprofen. The MEB physical exam noted some tenderness in the right lumbar paravertebral region. He was able to heel and toe walk without difficulty; sensation and reflexes were normal. ROM was measured with an inclinometer (listed VASRD goniometer normal ROM) and showed mildly reduced flexion of 80° (normal 90°); extension of 20° (normal 30°); and right lateral flexion of 15° (normal 30°); left lateral flexion and bilateral rotation were within normal. A VA Compensation and Pension (C&P) exam was not performed proximate to separation because the CI failed to report. The first C&P exam took place more than 3 years after separation, and documented forward flexion of 40° (combined 180° of normal 240°). VA records also documented later exams with worsening (VA 40% rating) and surgery in 2008. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated chronic LBP due to lumbar disc disease as 5243-5299-5237 (intervertebral disc syndrome analogous to lumbar strain) at 10%. The proximate VA rating based on the service treatment records (STR) was 5243 at 0%. Remote post-separation worsening and surgery was considered of little probative value for rating at the time of separation. There is no evidence in the record of incapacitating episodes as defined in the VASRD Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In the absence of incapacitating episodes, the same rating criteria apply to either coding choice of 5243 (intervertebral disc syndrome) or 5237 (lumbosacral strain) as specified in the VASRD General Rating Formula for Diseases and Injuries of the Spine. The spine rating formula rating is with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Board found that the CI’s chronic LBP condition most nearly met the 10% general rating criteria for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or localized tenderness not resulting in abnormal gait. The Board recommends coding as 5243 IAW VASRD guidelines in effect at the time of separation. 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’s 10% adjudication for the chronic LBP condition, but that there should be a modification of coding to 5243 to comply with the VASRD in effect at the time of separation. Contended PEB Conditions. The CI’s contended: “After my lower back surgery conditions of my leg got worse, numbness of leg sometimes makes it hard to drive” was considered a contention for additional rating for a peripheral nerve rating (pain and numbness). The Board’s main charge is to assess the fairness of the PEB’s determination that there was no “neurologic abnormality” which was considered a PEB determination that there was no unfitting peripheral nerve condition. The chronic bilateral leg pain was appropriately combined under the unfitting back condition above, and is IAW the general spine formula that stipulates the spine rating is “with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.” The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The Board deliberated whether there was evidence of a separately ratable non-pain radiculopathy of either lower extremity. Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. There were no fixed motor or sensory deficits, or reflex abnormalities. The spine surgery in 2008 and subsequent symptoms were considered post- separation worsening. Based on the evidence in the record, there was insufficient evidence of functional impairment of either lower extremity proximate to separation. 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 implied PEB fitness determination for any non-pain radiculopathy or peripheral nerve condition and so no additional disability ratings are recommended. 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 chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s 10% adjudication, but modification of the code to 5243. In the matter of the non-pain lower extremity (peripheral nerve) conditions, the Board unanimously recommends no change from the PEB’s implied determinations as not unfitting. 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 Chronic Low Back Pain due to Lumbar Disc Disease 5243 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120619, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxx, AR20130006037 (PD201200947) 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 description without modification of the combined rating or 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 xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)