RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200509 SEPARATION DATE: 20011115 BOARD DATE: 20130115 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (71L10/Administrative Specialist), medically separated for chronic mechanical low back pain (LBP), without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion. Despite orthopedic and physical therapy evaluations and medication, the CI was unable to perform his duties or meet the physical fitness standards. The CI was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic LBP, nonradicular in nature; pain is moderate and frequent. The MEB forwarded no other conditions for Informal Physical Evaluation Board (IPEB) adjudication. The IPEB adjudicated the chronic mechanical LBP as unfitting rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD), Department of Defense Instruction (DoDI) 1332.39, and AR 635-40 Appendix B-39. The CI appealed to a Formal PEB (FPEB) asking to be found fit for continued service. The FPEB affirmed the iPEB findings and the CI was then medically separated with a 10% disability rating. CI CONTENTION: “I am constantly having severe back pains & problems each and every day [SP], I take medications daily for pain and muscle spasms (CycloBENZaprine, Meloxicam & Motrin). I have heating pads and a back brace which is a temporary relief. I am not able participate in family events with my kids and family. This causes depression and sadness to not be able to participate in family events and functions. By not being able to exercise regularly, like I normally did in the US Army, I now have Diabetes Type 2. I have been having the symptoms with fatigue, irritations, eye sight, slow to heal, etc. But, however I was not diagnosed with Diabetes until 2008. My Medical records does [sic] not show adequate Lab work for signs of Diabetes. I currently have 20% Disability for Back Problems and 10% for my Alopecia. I have a total of 30% Disability.” 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 chronic mechanical LBP condition meets the criteria prescribed in DoDI 6040.44 for Board purview and is addressed below. The requested conditions of depression; Diabetes Type 2 with fatigue, irritations, eye sight, slow to heal, etc.; and alopecia are not within the Board’s purview. The remaining conditions rated by the VA at separation and listed on the DD Form 294 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 Army Board for Correction of Military Records. RATING COMPARISON: Service FPEB – Dated 20010905 VA (~5 Months Post-Separation) – All Effective Date 20011116 Condition Code Rating Condition Code Rating Exam Chronic Mechanical Low Back Pain 5299-5295 10% Degenerative Disc Disease, Lumbosacral Spine at L4-5 with Recurrent Lumbosacral Strain 5295 20% 20020404 .No Additional MEB/PEB Entries. Alopecia of Scalp 7899-7816 10%* 20020404 Not Service-Connected x 5 Combined: 10% Combined: 30%** *Initially rated as 7830 at 0% then increased per Decision Review Officer Decision to 7899-7816 at 10% effective 20011116. **Initially 20% but then increased per Decision Review Officer Decision to 30% with increase of alopecia rating effective 20011116. ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation. The Board utilizes VA 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. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. Chronic Mechanical Low Back Pain Condition. There were three range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Thoracolumbar ROM PA ~7.5 Months Pre-Separation MEB ~6 Months Pre-Separation VA C&P ~5 Months Post-Separation Flexion (90° Normal) Decreased ROM “Fingertips to knees with some pain” 55° Ext (0-30) 20° 10° R Lat Flex (0-30) Not measured 0-10° L Lat Flex 0-30) 0-15° R Rotation (0-30) 0-10° L Rotation (0-30) 0-15° Combined (240°) 115° Comment Tenderness to palpation paraspinal muscles; negative straight leg raise; strength 5/5; normal sensation Motor 5/5; sensation intact to light touch; symmetric 2+/4 deep tendon reflexes bilaterally; some pain with pivot rotation of spine; no tenderness to palpation; no pain with Faber’s sign; negative straight leg raise; no pain with axial compression; and no overreaction; Waddell’s 0/5 positive Gait normal; back midline; tender to palpation in the paravertebral muscles on left; slight spasm lower lumbar area; pain with ROM to left lumbar area; straight leg raise negative for radicular symptoms; reflexes 2+; heel/toe intact; motor and sensation intact; lower extremity ROM guarded but intact; Patrick’s and Goldthwaite tests negative; significantly greater range of motion noted when CI not under direct examination §4.71a Rating 5295 10% 10% 20% 5292 10% 10% 20% There were numerous notes in the service treatment record that documented the LBP condition from December 1999 through April 2001. In 1996 a lumbar spine X-ray noted a moderate degree of lumbar spine dextroscoliosis. The CI continued with the LBP and a repeat lumbar spine X-ray found a right L5 spondylolisthesis with early degenerative changes at T12-L1 and L2-4. The CI underwent a third set of lumbar spine X-rays in October 2000 which showed mild L4-5 degenerative disc changes. Magnetic resonance imaging performed on 31 October 2000 noted mild degenerative disc disease at L4-5 with a mild bulge in the cal sac and no stenosis at any level. The CI was seen by a physician assistant in April 2001, approximately 7 months prior to separation, and was noted to have had pain when standing for long periods. The physical exam findings are summarized in the chart above. The MEB narrative summary (NARSUM) examination approximately 6 months prior to separation indicated a lack of benefit from, an inability to run or do sit-ups, pain with riding in a tactical vehicle, and an inability to sit for longer than an hour, as well as pain with long periods of carrying a load bearing equipment. His pain was noted to be moderate and frequent. The examiner opined that there were no radicular symptoms and no indications for surgery. The NARSUM physical exam findings are summarized in the chart above. The VA Compensation & Pension (C&P) examination performed approximately 4 months after separation noted that the CI continued with chronic LBP, early morning stiffness, pain upon walking that lasted approximately 2 hours and resolved with medications, and back discomfort that was aggravated by stair climbing. The C&P exam findings are summarized in the chart above. The CI appealed for an increased rating for his back pain four times from October 2005 to October 2009, but thoracolumbar flexion remained between 40 and 50 degrees; therefore the 20% rating was continued by the VA through April 2010, the time of the most recent VA rating decision available for review. The 2001 VASRD coding and rating standards for the spine, were in effect at the time of separation, and then changed to the current §4.71a rating standards on 26 September 2003. The 2002 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. When older cases have goniometric measurements in evidence, the Board reconciles (to the extent possible) its opinion regarding degree of severity for the older spine codes and ratings with the objective thresholds specified in the current VASRD §4.71a general rating formula for the spine. This promotes uniformity of its recommendations for different cases from the same period and more conformity across dates of separation, without sacrificing compliance with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time of separation. The Board directs attention to its rating recommendation based on the above evidence. The FPEB coded the chronic mechanical LBP condition as analogous to 5295 and assigned 10% rating based on characteristic pain on motion. The VA coded the degenerative disc disease condition as 5295 rated at 20% based on muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. The Board noted that both the PEB and VA examinations were sufficiently documented in terms of ratable data for the criteria in place at the time of their rating determinations. While the C&P examination was completed closer in time to the date of separation, it was completed after separation. The C&P exam also includes an indication of doubt regarding the actual ROM limitations as the CI was noted to have a significantly greater ROM of this thoracolumbar spine when he was not being directly examined. Therefore, greater probative value is assigned to the NARSUM examination that noted no positive Waddell’s signs. While ROM measurements were not required, the NARSUM examination does document some limitation of motion of the thoracolumbar spine and pain with motion. With no muscle spasm and only a slight limitation of motion, a rating greater than 10% with either 5292 or 5295 is not warranted. 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 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. As discussed above, PEB reliance on DoDI 1332.39 VASRD and AR635-40 Appendix B-39 for rating the chronic mechanical LBP was operant in this case and the condition was adjudicated independently of these documents by the Board. In the matter of the chronic mechanical LBP condition, 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 5299-5295 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120604, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF President Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxx, AR20130001620 (PD201200509) 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 xxxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)