RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1200167
BRANCH OF SERVICE:  Army	BOARD DATE:  20130417
SEPARATION DATE:  20061218

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/Infantryman) medically separated for chronic back pain.  The CI began having back pain during deployment in 2004-2005 without a precipitating trauma.  The back pain 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 back condition, characterized as “lumbago” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded posttraumatic stress disorder (PTSD) as a medically acceptable condition for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic back pain” as unfitting, rated 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition was determined to be not unfitting.  The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION:  “ I have ptsd and had to undergo lower back fusion for my service connected disability and I also have sleep apnea now and still have two disks in my lower back that are slipped.  Also have TBI.”  

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.  The rating for the unfitting low back condition is addressed below.  The requested PTSD condition, which was determined to be medically acceptable and not unfitting by the PEB, is likewise addressed below.  The requested sleep apnea and traumatic brain injury (TBI) conditions were not identified conditions and thus are not 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 Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – Dated 20061130	VA - (6.5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	DDD Lumbar Spine	5243	20%	20070711	
PTSD	Not Unfitting	PTSD	9411	50%	20070725	
No Additional MEB/PEB Entries	NSC x 2	20070711	
Rating:  10%	Combined Rating:  60%	
Derived from VA Rating Decisions (VARD) dated 20070820 and 20080102.  Spine rating increased to 40% effective 20100915.  PTSD changed to mood disorder and reduced to 30% effective 20110401.  TBI added at 0% effective 20100508

ANALYSIS SUMMARY:  

Chronic Back Pain.  Service treatment records (STRs) indicated a history of low back pain (LBP) beginning 2004-2005 during a deployment.  The CI did not recall a specific injury.  He received conservative treatment.  On 3 March 2006, approximately 9 months prior to separation, clinic encounter recorded report of radiating pain.  On examination, there was decrease in range-of-motion (ROM), and strength, and muscle spasm was noted.  Reduced ROM for the back was noted in nearly all of the records, with one finding of muscle spasm as cited above, and no evidence of incapacitating episodes recorded.  Radicular symptoms were recorded; however, clinical exams were not suggestive of nerve root involvement.  The CI was diagnosed with lumbar degenerative disc disease (DDD) and was deemed not to be a surgical candidate.  Magnetic resonance imaging (MRI) (7 months prior to separation) demonstrated bulging intervertebral disc at the L5/S1, L3-4, and L4-5, all with mild narrowing of neural foramina without evidence of significant central stenosis.  Although there were no clinical correlates of reported radicular symptoms, nerve conduction study (NCV) 21 August 2006, approximately 4 months prior to separation, reported findings indicative of radiculopathy on the left side of L5-S1 level.  The commander statement stated, “Job performance has been admirable.”  The CI had been a Team Leader but “the decline in his condition has been the deciding factor in his decline in performance..…we can no longer expect him to do certain things with the condition of his body.”  The CI was profiled for herniated discs condition and was allowed to walk, bike, and swim at own pace and distance but could not stand for greater than 30 minutes per hour.  On the narrative summary (NARSUM) evaluation, 31 October 2006, 2 months prior to separation, symptoms were noted to be persistent with no improvement.  ROM was recorded from 11 September 2006 physical therapy record that noted 10 degrees of flexion and extension.  Gait and neuromuscular examinations were not recorded.  At the VA Compensation and Pension (C&P) evaluation, 11 July 2007, approximately 7 months after separation, the CI reported he was not on any medications and was working as a carpet warehouse manager (desk job) and had not lost time from work in the last year.  On examination gait and posture were noted as normal.  Lumbar spine ROM recorded flexion to 75 degrees, limited by pain at 75, extension to 30 degrees without pain, bilateral flexion of 20 with pain at 20, and bilateral rotation of 30 without pain.  Motor strength, reflexes, and sensory exams were all normal and tests of neuropathy were normal.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% coded analogously 5237 (lumbosacral strain) for back pain without neurologic abnormality and ROM limited by pain.  The VA rated the condition 20% using code 5243 (Intervertebral disc syndrome), based on forward flexion at 75 degrees with pain, with notation of no additional functional loss due to excessive continuous pain.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the Veterans Administration Schedule for Rating Disabilities (VASRD) in effect at the time of separation.  The Board must correlate the above clinical data with the 2006 rating schedule which was in effect at the time of separation (applicable diagnostic codes include: ratings under general spine rules 5235-5243 (limitation of lumbar spine motion); 5243, (Intervertebral disc syndrome), and 5237 (lumbosacral strain).  Under the 5243 code at the time of separation, a 20% rating required documented incapacitating episodes or limitation of motion.  There was no evidence supporting a higher rating for incapacitating episodes under this code.  Although the CI’s NCV study was abnormal, the records demonstrate no evidence of clinically significant peripheral neuropathic impairment.  Additionally, there was no documented evidence of spasms resulting in postural or contour changes in the spine that would support a higher rating under any applicable code.  The Board noted the marked disparity in the ROM reported in the NARSUM compared to the recorded ROM at the C&P evaluation.  The record showed nine entries where ROM was referenced.  Two of those were clearly greater than 90 degrees; three where between 30-60 degrees, two less than 30, and two were indeterminate.  The Board concluded the preponderance of the evidence suggests the ROM was approximately 60 degrees and supported a rating of 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was sufficient cause to recommend a change in the PEB adjudication for the chronic back condition.

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was PTSD.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board notes that the PEB psychiatric statement dated 30 November 2006, a month prior to separation, specifically stated that the CI’s condition was medically acceptable.  The condition was never profiled.  The commander noted that the CI performed “admirable” in the office; the condition was not implicated in commander’s statement.  There was no indication from the record that the mental health condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the PTSD and, therefore, no additional disability rating can be recommended.

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 the USAPDA pain policy DoDI 1332.39 for rating chronic back pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the contended PTSD condition, the Board unanimously recommends no change from the PEB determination of not unfitting.  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	
Chronic Back Pain	5299-5237	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120215, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130009610 (PD201200167)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA