RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201434 SEPARATION DATE: 20021001 BOARD DATE: 20130301 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (19K/M1 Gunner), medically separated for low back pain (LBP) with history of radiation to the right buttock and to bottom of the foot. The back condition could not be adequately rehabilitated 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 LBP condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “I think that my back condition was underrated at the time because I served for almost six years honorably. And to be dismissed with only 10% for a pinched nerve herniated disc and bulging disc was inappropriate. 1) R/Shoulder impairment 20%, 2)R/had 5th metacarpal (broken) 10%, 3)L/wrist carpal tunnel syndrome 10%, 3)L/wrist scar from surgery 10%.” 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 condition LBP as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting conditions. The other requested conditions 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 IPEB – Dated 20020703 VA (# Mos. Pre/Post-Separation) – All Effective Date 20021002 Condition Code Rating Condition Code Rating Exam Low Back Pain 5293 10% Right L5-S1 Disc Bulge 5299-5003 10% 20021125 .No Additional MEB/PEB Entries. Right Shoulder Injury 5299-5203 *10% 20030415 Left Carpal Tunnel Syndrome 8515 *10% 20030415 Right Hand Fracture 5299-5215 *10% 20030415 0% X 2 Combined: 10% Combined: 40% *Added by VARD 20030515 effective 20021002 ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. 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. 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 nor for conditions determined to be service connected by the VA but not determined to be unfitting by the PEB. However the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all 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’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. Low Back Pain Condition. The orthopedic MEB narrative summary (NARSUM), dictated 16 May 2002, recorded a year history of LBP with radiation to the right buttock, right posterior thigh, right posterior leg and bottom of his foot. There was no specific trauma or injury related to the onset of back pain. Magnetic resonance imaging (MRI) on 30 August 2001 demonstrated intervertebral disc protrusion at L4-5 and a disc herniation at L5-S1 making contact the right L5 nerve root, with an associated annular tear. Neurosurgical evaluation in October 2001 concluded with a recommendation for non-surgical treatment based on the absence of weakness, intact reflexes, and negative straight leg raising. Despite treatment duty limiting pain persisted. At the time of the MEB NARSUM, the CI stated that he had pain most days, which worsened with activity. The CI reported that his permanent profile had led to improvement of his pain. He was working as an instructor operator for a tank simulator and was not experiencing pain, as he was no longer riding in military vehicles, running, rucking, lifting, and going across uneven terrain. On examination, there was full range-of-motion (ROM) (lumbar spine), normal strength (5/5) in all muscle groups, and normal, symmetric reflexes. The CI reported decreased sensation to pin prick in the right S1 distribution. The CI had a positive straight leg exam around 35 degrees on the right. No muscle spasms were noted. The CI’s gait was normal and he was able to walk on his heels and toes without difficulty. The VA Compensation and Pension (C&P) examination, performed 25 November 2002 a month after separation, reported that the CI reported continued pain (8/10 intensity) with radiation, now to both lower extremities, despite physical therapy, nonsteroidal anti-inflammatory drugs (NSAIDs), and traction. The CI reported to the examiner that he was having difficulty obtaining employment secondary to his pain. He was unable to tolerate various classes of pain medication. The physical examination revealed a normal ROM with 90 degrees of forward flexion, 30 degrees extension, lateral flexion of 35 degrees, and 30 degrees rotation bilaterally. The CI reported pain on motion at maximum ROMs. There was no deformity of the spine, no paraspinal muscle spasms, and no postural or gait abnormality. The CI was able to squat, walk on toes and heels, hop, and bear weight in each leg without evidence of pain. The Board directs attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2002 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004. The Board must correlate the above clinical data with the 2002 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome; and 5295 Lumbosacral strain). The Board considered the rating under the VASRD diagnostic code 5292 limitation of lumbar spine motion in effect at the time. The Board agreed the ROM at the time of the MEB examination and the C&P examination was normal more nearly approximating a 0% (zero) rating. There was pain on motion which warrant consideration of a 10% rating IAW VASRD §4.49 (painful motion), however, the examinations supported a 10% rating under 5293 or 5295 as noted below. The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293, used by the PEB. The CI did have evidence of intervertebral disc syndrome with radiating pain without neurologic findings. The Board initially looked at the VASRD standards for code 5293 that were current at the time of the PEB adjudication and all agreed that the CI’s condition was consistent with the 10% rating, reflecting mild disease. There was chronic pain aggravated by activity but no “attacks.” The Board noted that the VASRD guidance under 5293 was updated effective 25 September 2002, one week before the CI separated. The updated guidance for 5293 was based on incapacitating episodes requiring bed rest prescribed by a physician. There was no evidence of incapacitating episodes to warrant a minimum rating under the updated 5293 guidance. The Board also considered the rating under the code, 5295, lumbosacral strain but concluded the preponderance of evidence did not support a rating higher than the 10% rating assigned by the PEB. There was pain on motion but no spasm or loss of lateral motion. Although there was radiating pain, there was no objective evidence of weakness. The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting. Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities. There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing. The Board therefore concludes that additional disability rating was not justified on this basis. 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 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. 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 LBP 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 Low Back Pain 5293 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120801, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXX, 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 XXXXXXXXXXXXXXX, AR20130006198 (PD201201434) 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 XXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)