RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201464 SEPARATION DATE: 20020427 BOARD DATE: 20130314 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantry), medically separated for chronic low-back pain (LBP). He first experienced LBP during a unit run in 1999; it resolved, but then recurred in 2001. The CI did not improve adequately with conservative treatment and was unable to perform within his Military Occupational Specialty (MOS), or meet physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Chronic LBP (right) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40- 501. No other conditions were on the MEB’s submission. The PEB adjudicated chronic LBP with L5/S1 radiculitis without focal motor or reflex abnormalities 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% combined disability rating. CI CONTENTION: “The Medical Board came back with a rating of 10% for a degenerated disk. I had followed up with Veteran Affairs shortly after discharge and received a 70% rating for all service connected injuries and I am currently rated at 80% service connected through the VA. I have since had surgery on my lower back which has seen little relief of pain. I was rated by the VA for the injury rated by the medical board at a 40% rating. In December on 2010 it was found by an MRI that I have another disk bulging which is directly above the injuried [sic] disk from Active Service. In December 2011 I had surgery on the disk rated by the medical which has proven to given me little relief. The other service connected injuries consist of verrucous [sic] veins which I had two vein strippings while in service. I also had surgery on my right calf muscle do to a vein compartment issue which left the inner portion of my lower leg numb. Rating also for hearing which I was fitted for improper hearing protection. The ear protection did not measure for canels [sic] of different proportion while being issued for the smaller ear canel [sic]. This does not include the mental and physical aguish I have dealt with in the past 10 years with pain management. Before surgery I was up to taking 15mg of Oxicodone 3 times a day to function. Although it has been reduced to 10 mg of Oxicodone twice a day I still have large quantities of pain. Since February of 200812 [sic] when I suffered a horrific inflammation of the service connect [sic] lower back disc injury my left leg is numb from the waist down with constant tingling in the left foot. Occasionally having burning pains down my left leg. Also experience muscle spasms and cramping in both legs. The right leg being the lesser of the problems.” SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. Ratings for unfitting conditions will be reviewed in all cases. Only the LBP with radiculitis is within the Scope of the Board. 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 respective Board for Correction of Military Records. The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continues to burden him; but, must emphasize that the Disability Evaluation System (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. The Board considers DVA evidence proximate 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 to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. RATING COMPARISON: Service IPEB – Dated 20020219 VA - (4 Mos. Post-Separation) VARD 20030116 (most proximate to Date of Separation) Condition Code Rating Condition Code Rating Exam Chronic LBP… 5295 10% DDD 5003-5292 40% 20020820 No Additional MEB/PEB Entries S/P Right … Knee 8599-8526 20% 20020820 Residuals, S/P Right Leg Vein… 7120 10% 20020820 Left Leg Varicose Veins 7120 10% 20020820 Right Leg Tender Scars … 7804 10% 20020820 Tinnitus 6260 10% 20020806 Bilateral Hearing Loss 6100 10% 20020806 Not Service-Connected x 1 20020820 Combined: 10% Combined: 70% ANALYSIS SUMMARY: The 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 service 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 DVA but not determined to be unfitting by the PEB. However, the 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. 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 noted that the 2002 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. Chronic Low Back Pain Condition. The CI initially reported LBP in March 1999 which started during a unit run. The CI had a recurrence in February 2001 while walking up a flight of stairs in his barracks and reported constant pain following that. Magnetic resonance imaging (MRI) on 21 March 2001 revealed a left lateral L5/S1 disc protrusion which contacted and displaced the left S1 nerve root. There was also a “very small annular tear and disc protrusion” at L4/L5 that showed “minimal narrowing of L5.” A single photon emission computed tomography (SPECT) scan, a test to evaluate vascular perfusion, was performed on 3 April 2001 and revealed hypoperfusion in the medial right calf that correlated with the complaints of pain on examination indicating a non-radicular component to the pain. There was normal perfusion in the left leg. Conservative treatment, including physical therapy (PT), traction, and lumbar stabilization was unsuccessful. He was referred to Physical Medicine and Rehabilitation (PMR) in October 2001 for further management. According to the narrative summary (NARSUM), a bone scan of the lumbosacral spine and hip in November 2001 was read as normal. The NARSUM stated that the CI was recommended for permanent profile by the PMR physician because of worsening pain, difficulty sleeping, walking, and getting up from a seated position. The NARSUM was dictated 4 months prior to separation. The CI reported that his pain had worsened and that he was unable to walk or get out of his chair some days. He also reported constant numbness of the right medial leg, but there was some belief that this might have resulted from a fasciotomy performed in July 2001 for a right leg posterior compartment syndrome. The CI also reported that he was having difficulty standing in one position for too long, running, lifting, carrying, and doing pushups and sit ups. The CI reported that avoiding sitting or standing for extended periods of time and a certain analgesic (unknown) was helpful in alleviating the pain; however, he was not taking medication for pain at that time. On examination, the patient had reduced extension, but the range-of-motion (ROM) was otherwise normal. The examiner noted diffuse tenderness to palpation along the entire lumbosacral spine. Four of five signs of non-organic pain were present. The CI’s muscle strength and reflexes were normal. There was normal sensation in the lower extremities with the exception of the medial aspect of the right leg; this was thought to be secondary to the prior fasciotomy and not noted as impairing duty. The C&P examination was on 20 August 2002, 4 months after separation. The CI reported chronic back pain for 4 years which was constant with shooting pain from the lower back down both legs. The CI reported a flare up every couple of weeks which last 3 to 4 days and required him to have bed rest every couple of months. The CI reported that he was able to complete activities of daily living, vaccum, walk a reasonable distance, drive a car, shop, and take out the trash. He reported that he was unable to climb more than a flight of stairs at a time and he avoided lawn mowing and gardening. He had been employed as a cashier and reported missing a day of work each month, mostly due to his radiating back pain. On examination, the examiner made note of the absence of symptoms consistent with intervertebral disc syndrome (no radiation of pain in the lumbar spine, no muscle spasm, and no signs of radiculopathy). The examiner reported the presence of paravertebral tenderness and decreased ROM in extension, rotation, and lateral bending. His flexion was near normal. The examiner stated “There is no extension of the lumbar spine and he has pain on attempting to extend the lumbar spine.” It was also noted that there was no ankylosis of the spine. The Board directed its attention to the rating recommendation based on the above evidence. 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 two examinations proximate to separation. The two examinations bracketed the date of separation within a month of each other. It is obvious that there is a clear disparity between these examinations, with very significant implications regarding the Board's rating recommendation. The Board thus carefully deliberated its probative value assignment to these conflicting evaluations, and carefully reviewed the service file for corroborating evidence in the 12-month period prior to separation. The Board observed that the MEB examination showed better ROM despite the presence of four non-organic signs of pain. This examination was also more consistent with the examinations recorded at various clinical appointments the year prior to separation and with the clinical and diagnostic pathology in evidence. The incapacitation, reported by the CI at the C&P examination as being bed rest for 3 to 4 days every couple of weeks, was not supported by the clinical record or the commander’s letter. There is not a reasonable accounting for progressively impaired ROM in the fairly short interval between the MEB and VA examinations or the increased level of symptoms reported by the CI at the C&P examination. The VA ROM evaluations rely on subjective pain thresholds which are plainly associated with financial incentive, thus intrinsically subject to some loss of objectivity. Therefore, based on all evidence and associated conclusions just elaborated, the Board is assigning preponderant probative value to the MEB evaluation. The Board agreed that the CI’s back condition, using the code 5292 for limitation of motion based on the MEB examination was not greater than slight, providing no advantage to the CI. The Board did not concur with the VA assessment of severe limitation in ROM which was based on the C&P examination. The Board reviewed the VASRD standards for code 5293, intervertebral disc syndrome that were current at the time of the PEB adjudication and all agreed that the CI’s condition was not compensable using this code. Although, there was evidence to support characteristic pain, there was no demonstrable muscle spasm, absent ankle jerk, or other neurological finding present which is required for this syndrome. The Board noted that while the CI reported incapacitation of 3 to 4 days every couple of weeks to the C&P examiner, this is not supported by the record. The Board reviewed the rating criteria for VASRD code 5295, lumbosacral strain, used by the PEB to assign a 10% disability. The Board agreed that the evidence documented in the service treatment records (STR) did not support a higher rating than that adjudicated by the PEB. 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. 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 Low Back Pain 5295 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120629, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxx, AR20130007727 (PD201201464) 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)