RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201924 SEPARATION DATE: 20060626 BOARD DATE: 20130319 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). The CI was deployed to Iraq in March of 2003 as a Bradley Fighting Vehicle driver where he was involved in multiple Improvised Explosive Device (IED) attacks. He began experiencing LBP while deployed. The CI 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 characterized his condition as lumbar facet arthorosis L4-L5 and L5-S1 and forwarded it to the Physical Evaluation Board (PEB). No other conditions were submitted by the MEB. The PEB adjudicated the condition, chronic LBP, secondary to degenerative disc disease (DDD), facet hypertrophy and arthritis, as unfitting, rated 10% IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% Service disability rating. CI CONTENTION: “The Army rated my Radiculopathy and Lumbar facet together as the VA. I asked the VA to reevaluate my condition and to separate Radiculopathy of the lower extremities, in which they rated my bilateral lower extremities at 10% each, my lumbar was rated at 20%. My cervical spine was also looked at by the Army but never rated. VA rated my cervical spine at 10%. If the Army were rate this condition in this manner I should be rate a combine of 30%.” (sic) SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (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 rating for the unfitting chronic low back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview 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. RATING COMPARISON: Service IPEB – Dated 20060508 VA - (1 mo. Pre-Separation) Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain 5242 10% Lumbar Facet Arthrosis with Left Radiculopathy 5242 10%* 20060531 No Additional MEB/PEB Entries Other x 12 20060531 Combined: 10% Combined: 30% 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 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. Chronic Low Back Condition. Service treatment records (STR) noted the onset of back pain secondary to trauma while deployed to Iraq in 2005. On 8 February 2006 magnetic resonance imaging (MRI) of the lumbar spine some arthritis with no evidence of fractures and no significant disc or nerve root pathology. Having failed conservative treatment and not a surgical candidate, he was placed on a permanent profile that indicated he could walk, bike, or swim at his own pace and distance. At the MEB narrative summary (NARSUM) exam dated 4 April 2006, approximately 3 months prior to separation, the CI reported no incapacitating episodes. The MEB physical exam noted mild muscle spasms, but no evidence of neuromuscular abnormalities. Range-of-motion (ROM) testing performed by physical therapist, 20 April 2006, recorded average thoracolumbar flexion of 77 degrees and extension 15 degrees. The DD Form 2808 exam noted normal gait, approximately 3 weeks after the NARSUM. At the VA Compensation and Pension (C&P) dated 31 May 2006, approximately 3 weeks prior to separation, the CI reported an intermittent dull pain about two times a week with prolonged standing and walking. He noted flare ups to last 1 to 2 hours easing with medication during which he could function. He was able to walk up to one mile with no histories of falls. The C&P physical exam noted normal gait and posture, without tenderness, muscle spasms or change in spinal contour. Flexion and extension of thoracolumbar spine and motor and sensory exams were normal. The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and VA rated the condition 10% coded 5242 (degenerative arthritis); the PEB cited spasms and limitation of forward flexion and the VA cited tenderness. A higher rating of 20% requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 60 degrees, was not supported by the evidence in record. The Board agreed there was slight limitation in ROM supporting the 10%; however, there is insufficient evidence to support the higher rating of 20% under range of motion. The Board considered rating under 5243; however, there was no evidence or 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 5243. There is no VASRD sanctioned pathway to a rating higher than the minimal compensable rating. 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 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 low 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 5242 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20121120, 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 / xxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxx, AR20130007724 (PD201201924) 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 xxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)