RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201489 SEPARATION DATE: 20031016 BOARD DATE: 20130117 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (55B/Ammunition Specialist), medically separated for chronic low back pain (LBP). The CI failed conservative treatment to include medications, physical therapy (PT), chiropractic care and temporary profiles. The chronic LBP condition could not be adequately rehabilitated and 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 (MEB). 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) and cited application of DoDI 1332.39 and AR 635-40. The CI made no appeals, and was medically separated with a 10% disability rating. An administrative change was made to item 10 of the original PEB determination, and the overall rating was not changed from 10%. CI CONTENTION: “Chronic lower back pain degenerative muscle damage in back, Plantar Fasciitis in both feet, Chronic arthritis in left ankle due to break in tibia/fibia. (sic)” 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. The unfitting condition chronic LBP as requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview; and, is addressed below. The other requested conditions of plantar fasciitis, and chronic arthritis in left ankle are not within the Board’s purview. 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 service Board for Correction of Military Records. RATING COMPARISON: Service Admin Correction – Dated 20030709 VA (16 mons pre-sep) – All Effective Date 20031017 Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain without Neurologic Abnormality 5299-5295 10% Low Back Strain (also Claimed as Mechanical LBP and HNP) 5237 10% 20020628 .No Additional MEB/PEB Entries. Residual, Left Ankle Fracture Postoperative with Scar and DJD and Decreased Range of Motion 5010-5271 10% 20020628 0% X 2 Combined: 10% Combined: 20% ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. 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. 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. However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. Chronic Low Back Pain Condition: The CI had a several year history of non-traumatic, non- radiating LBP which failed to resolve or improve with vigorous conservative treatment modalities to include chiropractic care and local steroid injections. The CI had no long-term resolution of his symptoms. Radiological imaging of the lumbar spine plain films (dated October 1995, February and August 2002) and magnetic resonance imaging (MRI) scans (dated November 1993 and January 2003) were normal. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Thoracolumbar ROM (degrees) VA C&P ~16 Mos. Pre- Sep Chiro ~11 Mos. Pre- Sep PT ~7 Mos. Pre- Sep MEB ~5 Mos. Pre- Sep Flexion (90 Normal) 90 (45) 70 60 50 Ext (0-30) 30 (15) 20 30 10 R Lat Flex (0-30) 35 35 15 10 L Lat Flex 0-30) 35 35 15 10 R Rotation (0-30) 30 (20) 25 - 30 L Rotation (0-30) 30 20 - 30 Combined (240) 250 205 140 Comment: VA normal ROMs effective 20030926 (#) = begins painful ROM; limp tender; painful motion; spasm tender; painful motion tender; spasm; painful limited ROM §4.71a Rating 10% 10% 20% 20% Note: ROM data measurements are in degrees At the MEB exam, the CI reported having continued progressive worsening of mid to LBP described as mostly non-radiating with a daily pain rated at 5/10. The MEB physical exam noted tenderness, spasm, and painful ROM to the lumbar spine as summarized above. Treatment notes indicated episodic spasms, pain-limited ROMs, and abnormal gait. At the VA Compensation and Pension (C&P) exam, the CI reported progressive LBP rated at 7/10 every other day with performing normal daily activities. Examination revealed normal, but painful ROM as summarized in the exam chart above. There was no VA exam proximate to the date of separation (DOS). Post-separation VA exam accomplished in 2006, over 2 years remote from separation was rated by the VA at 10%. The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the back condition utilizing the 2002 VASARD rating rules as 5299-5295, analogous to lumbosacral strain and citing DoDI 1332.39 and AR 635-40. The VA exams for rating at 10% were over 12 months remote from separation. The chiropractic exam 11 months prior to separation was unclear (hand-written) if there was muscle spasm. The Board considered it most likely to reflect spasm given other non-charted positive chiropractic tests. Additionally, the Board unanimously concurred that the forward flexion on the hand-written examination 7 months prior to separation was indeed 60 degrees versus 80 degrees. Upon deliberation, the Board agreed in this case that the MEB examination had the highest probative value for rating at the time of separation and was supported by treatment records indicating additional episodes of spasm and abnormal gait in the year preceding separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 20% for the low back condition and change of VASRD code to 5237 to comply with the VASRD in effect at the time of separation. 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. As discussed above, PEB reliance on DoDI 1332.39, AR 635-40, and the older VASRD for rating the low back condition was operant in this case and the condition was adjudicated independently of those instructions and with the applicable VASRD by the Board. In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a. 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 Lumbosacral strain 5237 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120816, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXX, 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 XXXXXXXXXXXXXXXX, AR20130003893 (PD201201489) 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 rating to 20% without 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 XXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)