RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201451 SEPARATION DATE: 20030326 BOARD DATE: 20130222 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, PFC/E-3(77F/Petroleum Supply Specialist), medically separated for chronic mechanical low back pain (LBP). The CI was on leave in December 2001 over the Christmas holiday from basic training when she was involved in a snow tubing accident in Iowa, injuring her back. The CI did not improve adequately with treatment to meet the physical requirements of her Military Occupational Specialty (MOS), was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded mechanical LBP as medically unacceptable IAW AR 40-501. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated chronic mechanical LBP as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD) and Department of Defense Instruction (DoDI) 1332.39. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: The CI states: “The rating should be changed because of the severity of the injury and the short and long term affects that have had a major effect on the service member’s daily life and ability to obtain gainful employment.” 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 ratings for unfitting conditions will be reviewed in all cases. 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 20030123 VA (6 Mos. Post-Separation) – All Effective Date 20030327 Condition Code Rating Condition Code Rating Exam Chronic Intermittent Low Back Pain 5299-5295 10% Low Back Condition 5237 20% 20030921 .No Additional MEB/PEB Entries. 0% X 0 / Not Service-Connected x 0 20030921 Combined: 10% Combined: 20% ANALYSIS SUMMARY: The Board wishes to clarify that it is subject to the same laws for 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 for disability at the time of separation. Chronic Intermittent Low Back Pain. Service treatment records (STRs) indicated a history of chronic intermittent LBP beginning 31 December 2001, during basic training. The CI had X-rays of the pelvis which were normal. A March 2002 physical therapy encounter recorded a report of radiating pain. Approximately 7 months prior to separation orthopedic records recorded full range-of-motion (ROM) with normal reflexes, strength and sensations and absence of radicular symptoms. There was tenderness to palpation (TTP) in mid-back; no objective finding of spasms on examinations. A physical therapy note, 9 months prior to separation, recorded normal gait, and mild tenderness. Magnetic resonance imaging (MRI) on 18 June 2002, approximately 9 months prior to separation, demonstrated a L2/3 disc bulge with no evidence of nerve compression. The CI was evaluated by neurosurgery on 21 November 2002, 4 months prior to separation. On physical examination there was no spasm or tenderness. Flexion was recorded at 60 degrees with full extension and lateral bending. X-rays of lumbar spine revealed a “very questionable minimal old compression fracture of superior body of L3”; however, the MRI was negative. Surgery was noted not likely be of significant benefit. No muscle weakness, diminished sensation or asymmetrical reflexes are reported in the treatment records. Upon MEB/narrative summary (NARSUM) evaluation on 2 December 2002, 4 months prior to separation, back symptoms were noted to be persistent with no improvement after conservative treatment. Physical examination recorded no spasm, normal gait, negative straight leg raises (SLR), and reduced flexion of 60 degrees and full extension and lateral bending. Treatment records indicated CI was approximately 12 weeks pregnant at this time. At the VA Compensation and Pension (C&P) evaluation, performed on 21 September 2003, 6 months after separation, the CI reported LBP/discomfort daily with pain sometimes shooting down the leg and back side to the knee. Pain was exacerbated if walking more than a mile, lifting greater than 20 pounds or running more than a half mile. On examination ROM included forward flexion, 60 degrees; extension, 20 degrees; with spasms of the lumbar spine. Motor, sensory and reflex sensory examinations were unremarkable. Gait and posture were not recorded. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% for pain on motion code 5295 (lumbosacral strain). The VA rated 20% for limitation of forward flexion code 5237 (limitation of motion). In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. Applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293, (intervertebral disc syndrome), and 5295 (lumbosacral strain) The Board considered the rating under 5295, lumbosacral strain, and agreed there was characteristic pain on motion supporting the 10%. There is insufficient evidence to support the higher rating of 20% since there is no evidence of spasms occurring on extreme forward bending and no documented clinical evidence of spasms in any record prior to separation. The Board noted the VA chose to rate the condition under the new spine rules that went into effect after the CI was separated. The Board noted the reduced ROM for forward flexion on the C&P evaluation to be consistent with the findings of the MEB/NARSUM. The Board considered the code 5292 limitation of motion for rating the condition. After discussion, the Board agreed that the limitation of motion of the spine at the time of separation was reduced; however, the CI was pregnant, thus, the ROM elicited may have been temporally compromised. The Board agreed the ROM elicited during the orthopedic exam more accurately reflected her baseline ROM at the time of separation and was slight, supporting a rating of 10%. The Board considered rating under code 5293, intervertebral disc syndrome. There was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication. There was no evidence of incapacitating episodes for a higher rating under this code. The Board was unable to find any pathway to a higher rating under any applicable VASRD code. 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 chronic 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. 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 back pain 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 Mechanical Low Back Pain 52992/5295 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120730, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxx, AR20130005508 (PD201201451) 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 xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)