RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	BRANCH OF SERVICE:  ArmY
CASE NUMBER:  PD1200514	SEPARATION DATE:  20020215
BOARD DATE:  20130503

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M10/Motor Transport), medically separated for chronic low back pain (LBP).  The CI sustained a back injury when he fell down 10 steps at his home.  The CI did not improve adequately with treatment 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 chronic LBP condition as unfitting, rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated with a 10% disability rating.

CI CONTENTION:  “Back injury, and head injury & pain has increased to the point where its becomes increasingly difficult to keep a good job.  When a pain flare-up occurs & lasts 2 to 3 weeks at a time.”  

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 conditions “identified but not determined to be unfitting by the PEB.”  The ratings for unfitting conditions are reviewed in all cases.  Any conditions or contention not requested in this application, or otherwise outside the Board’s scope of review, remain eligible for future consideration by the respective Service Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – Dated 20011017	VA (5 Mos. Post-Separation) – All Effective Date 20030226	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Degenerative Disc Disease of the Lumbosacral Spine	5242	10%	20030730 	
↓No Additional MEB/PEB Entries↓	0% X 2 / Not Service-Connected x 13	
Combined:  10%	Combined:  10%	
VARD dated 20041129, closest to date of separation.

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 Department of Veterans Affairs (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 Veterans Affairs Schedule of Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Chronic Low Back Pain Condition.  The narrative summary (NARSUM) notes the CI sustained a back injury when he fell down 10 steps at his home in August 2000.  The pain was worsened with running, marching or wearing his military equipment.  It was improved with rest and frequent changes in position.  The pain was the worst in the morning and the CI wore a back support when working out.  There was no loss of sensation, weakness, loss of control of bowel or bladder, fever or weight loss.  Magnetic resonance imaging (MRI) performed on 
22 November 2000 demonstrated degenerative changes (desiccation) with broad based disc bulges at L4-5 and L5-S1 without narrowing of neural foramina or nerve root impingement.  A physical therapy examination on 27 February 2001 recorded active range of lumbar spine motion was normal with pain at end range.  The MEB NARSUM physical examination on 15 June 2001 noted a normal spine without scoliosis.  There was tenderness to palpation over the right sacroiliac sulcus reproducing his pain.  Examination maneuvers that stressed the sacroiliac joint produced discomfort.  The reported range-of-motion (ROM) was performed using a bubble inclinometer and specified lumbar ROM was assessed.  Lumbar flexion was 65 degrees, extension 15 degrees, and lateral bending 30 degrees in both directions.  Straight leg raise (SLR) on the right reproduced his LBP but did not produce radicular signs.  Lower extremity strength, reflexes and sensation were normal.  At the VA Compensation and Pension (C&P) examination on 30 July 2003, 17 months after separation, the CI told the examiner that he was working in construction and breaking up concrete and able to perform these duties in spite of his back pain.  On examination there was tenderness to palpation over the spinous processes in the lumbar spine, normal posture, musculature and alignment.  There was no spasm, and gait was normal.  The ROM was reported for the “back” as flexion 80 degrees, extension 20 degrees, lateral flexion 40 degrees bilaterally and rotation 35 degrees bilaterally.  SLRs were negative for radicular signs and lower extremity strength, reflexes and sensation were normal.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back pain condition 10% based on the 2002 VASRD guidelines for lumbar strain (5295) while the VA also rated 10% but based on the current VASRD §4.71a general formula for rating diseases and injuries of the spine that became effective after the CI’s date 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 notes 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 September 2003.  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 MEB examination reported lumbar spine ROM with use of a bubble inclinometer.  The 65 degrees of flexion is normal (normal usually cited as 60 degrees) and is consistent with the physical therapy examination three months before.  There was mild limitation in extension and side bending supporting a 10% rating under the code for limitation of lumbar motion (5292).  The C&P examination reported ROM values consistent with thoracolumbar ROM and also supported a 10% rating for limitation of motion under both the VASRD guidelines in effect at the time of separation and the current guidelines applied by the VA.  Although there were bulging intervertebral discs there was no evidence of radiculopathy or signs or symptoms of intervertebral disc syndrome to warrant consideration for rating under 5293.  There was sufficient evidence for characteristic pain on motion to support the 10% rating under 5295, lumbar strain.  There were no findings such as spasm on forward bending or unilateral loss of lateral bending to support a 20% rating.  There was no evidence of radiculopathy to warrant consideration for additional disability rating for peripheral nerve impairment due to radiculopathy.  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.  In the matter of the chronic 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	
Chronic Low Back Pain 	5299-5295	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120602, 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 AR20130010791 (PD201200514)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA