RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201004 SEPARATION DATE: 20040129 BOARD DATE: 20130122 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, SPC/E-4, (31F/Signal Switch Operator), medically separated for chronic low back pain (LBP) without radiculopathy. In 1997, the CI slipped in the shower landing on her back (tailbone) and has had pain ever since. She treated with non- steroidal anti-inflammatory drugs and attempted physical therapy which only provided temporary relief. The CI was unable to meet the physical requirements of her Military Occupational Specialty (MOS). The profile allowed for an alternate aerobic event to satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic LBP and no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the chronic LBP condition as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “My mechanical low back pain has gotten worse and I now have radiculopathy in both lower extremities.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its 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 chronic LBP without radiculopathy condition meets the criteria prescribed in DoDI 6040.44 for Board purview, and is accordingly addressed below. 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 20031015 VA (2 Mos. Post-Separation) – All Effective Date 20040130 Condition Code Rating Condition Code Rating Exam Low Back Pain … 5237 10% Low Back Pain w/LLE radiculopathy 5237 10% 20040322 .No Additional MEB/PEB Entries. 0% X 0 / Not Service-Connected x 2 20040322 Combined: 10% Combined: 10% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which her service-aggravated condition continues to burden her. It is a fact, however, that the Disability Evaluation System 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 proximal 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 fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. “Chronic Low Back Pain Without “Radiculopathy” Condition. The narrative summary noted the CI sustained a fall in 1997 and had LBP ever since. She was treated with physical therapy including stretching exercise, transcutaneous electrical nerve stimulation units, and manipulation on and off for 2 years besides medications, including non-steroidal anti- inflammatory medications, that provided minimal to no relief. In August 2001 she had unremarkable sacroiliac joint X-rays. She was seen at anesthesiology pain clinic in February 2002, and sacroiliac joint pain was identified. By June 2002, an orthopedic surgery evaluation diagnosed sacral ileitis and mechanical LBP, with unremarkable lumbar spine X-Rays a few days later. The CI underwent negative bone scan in July 2003 and a magnetic resonance imaging showed facet hypertrophy bilaterally over L-4 and L-5 resulting in lateral disc narrowing without disc pathology. In July 2003, an orthopedic consult’s final conclusion was chronic LBP without etiology and she was referred for an MEB. She was issued a permanent L3 profile in September 2003 and her commander stated in October 2003 that she could not meet the requirements of her physical fitness testing or perform her MOS. At the MEB exam, 5 months prior to separation, the CI reported chronic LBP. On the DD Form 2807, the interviewer noted she was not taking any medication, had no bowel or bladder changes and did not have a history of lower extremity weakness. The MEB physical exam noted the CI’s “back straight,” tenderness to palpation over L5-S1, slight pain on hyper-extension with otherwise full range-of-motion (ROM), and a negative straight leg test. Lumbar ROM were stated as forward flexion over 90 degrees (normal 90 degrees) and L/R flexions over 35 degrees (normal 30 degrees). Her neurological exam was unremarkable with normal sensory, motor and reflex exams, and Waddell’s sign was positive for axial load. At the VA Compensation and Pension exam 2 months after separation, the CI reported she “now has continuous pain in the lower back and tailbone region,” continuous pain radiating into the left buttocks and intermittent numbness in the left leg when sitting for long periods. The examiner noted “no treatment for bed rest in the last year.” Exam revealed her back of normal contour, with “mild tenderness over L3-S1,” without sciatic notch tenderness or costovertebral angle tenderness. There were no measured ROM values recorded. Straight leg raising tests were recorded as normal as were lower extremity reflexes and sensory exam. The Board directs attention to its rating recommendation based on the above evidence. The PEB coded 5237 (lumbosacral strain) and awarded 10% under the VASRD in effect at the time of separation. Likewise, the VA coded 5237 and awarded 10% for “constant pain” under the same VASRD edition, and included radiculopathy in their disability description. The Board opined that the PEB exam contained ROM data and had a higher probative value to the VASRD in effect at the time of separation. The record supported a 10% rating under code 5237 (lumbosacral strain), for localized tenderness, not resulting in abnormal gait, or abnormal spinal contour. The Board considered the coding options and could find no pathway under 5236 (Sacroiliac injury and weakness) or 5243 (Intervertebral disc syndrome with evidence of incapacitating episodes), to support any rating higher than the PEB’s 10% rating. There was no objective evidence of non-pain radiculopathy and the General Rating Formula for Diseases and Injuries of the Spine 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 PEB specified “without radiculopathy” and the VA included occasional numbness without abnormal exam findings in their lower back rating above. The Board determined there was no unfitting or compensable radiculopathy at the time of separation. The Board noted the CI’s condition did not rise to the level of 20% disability characterized by muscle spasm or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. After due deliberation, 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 chronic LBP without radiculopathy condition. The Board concluded therefore that this condition could not be recommended for additional disability rating. 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 LBP without radiculopathy condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication with no unfitting or compensable radiculopathy at the time of separation. 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 Without Radiculopathy 5237 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120611, 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 xxxxxxxxxxxxxx, AR20130003898 (PD201201004) 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 xxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards) CF: ( ) DoD PDBR ( ) DVA