Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1200881
BRANCH OF SERVICE:  Army	BOARD DATE:  20130822
SEPARATION DATE:  20020405

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (13B/Field Artillery Cannoneer) medically separated for chronic lower back pain.  He began to experience right greater than left low back pain (LBP) in March 2001 as a result of a fall while unloading a truck.  He suffered persistent symptoms which did not adequately improve with treatment to satisfy the demands of his Military Occupational Specialty or meet physical fitness standards.  He was issued a permanent P3/S2 profile and referred for a Medical Evaluation Board (MEB) based on chronic LBP.  The back condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501; additionally, the MEB submitted an Axis II (antisocial personality disorder) to the PEB.  The PEB adjudicated the LBP without neurologic abnormality as unfitting, rated 10%.  The PEB found the antisocial personality disorder to not be unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am unable to work in certain jobs that require heavy lifting and bending.  Back pain is becoming progressively worse.”

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 back unfitting LBP is addressed below.  Any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20020219 | VA - (10 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain Without Neurologic Abnormality or Documented Chronic Paravertebral Muscle Spasms on Repeated Examinations, With Characteristic Pain On Motion | 5299-5295 | 10% | Chronic Low Back Pain, Myofascial | 5010-5292 | 20% | 20030203
Anti-Social Personality Disorder | Not Unfitting | No VA Entry
No additional unfitting conditions | Others x 3 | 20030203
Rating:  10% | Rating:  20%
Derived from VA Rating Decision (VARD) dated 20030212 (most proximate to date of separation [DOS]).

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 CI has noted in his contention that his “back pain is getting progressively worse.”  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 Veteran 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 reevaluate 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 for Rating Disabilities (VASRD) standards, based on severity solely at the time of separation.

Chronic Low Back Pain Condition.  The service treatment records (STR) note that the CI suffered a ground level fall on 28 March 2001, while moving furniture, and fell backwards against a metal bin.  The STRs indicate multiple clinic visits for right lumbar pain, without radiculopathy.  Periodically, the CI noted “occasional radiation of the pain to the right leg.”  Normal X-rays, normal magnetic resonance imaging (MRI) of the lumbar spine and normal electromyography (EMG) ruled out herniated disc or peripheral neuropathy.  His pain did not respond to conservative therapy.  On 25 September 2001, he was given a permanent profile of P3, with no lifting greater than 10 pounds, no running, no flutter kick exercises and no ruck marches.  Physical therapy notes on 20 July 2001 recorded a full active range-of-motion (ROM) with pain.  On 24 July 2001, STRs record that he was able to touch his toes.  On 31 July 2001, STRs record that his low back exhibited “full ROM with mild discomfort.”  On this occasion, posture, gait and ROM of the back were recorded as “normal.”  Unrelated to this condition, during this period, the CI was evaluated by psychiatry for anger management, and was diagnosed with an antisocial personality disorder (Axis II), for which he was recommended for administrative separation.  As the MEB was already in progress, no action was taken on this recommendation.  An urgent care treatment note dated 21 September 2001 (6 months prior to separation) noted muscle spasm, with significantly increased pain and “60% of expected range of motion.”  On 1 October 2001, his commander endorsed that the CI was not fit for continued service due to the duty limitations secondary to his back injury.

At the MEB exam, 3 months prior to separation, the CI reported pain in the right lower lumbar region, aggravated by running, prolonged sitting or standing, bending, stooping and lifting.  The MEB physical exam noted tenderness to palpation in the right lumbar region, a normal neurological examination and limited spinal ROM as noted in the chart below.  At the VA Compensation and Pension exam performed 10 months after separation, the CI reported chronic back pain, but with radiation to the left leg.  Examination at the VA revealed increased pain after repetitive motion, a positive straight leg test on the left leg, decreased sensation in the left leg at L5 and S1 nerve root distribution, and slight weakness of left ankle extension, for which the VA examiner diagnosed “degenerative disc disease with left radiculitis,” noting that this was a “clinical evaluation,” and that the diagnosis was not supported by objective information, such as EMG.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

“Back” ROM
(Degrees)

MEB ~3 Mo. Pre-Sep
(20020124)

VA C&P ~8 Mo. Post-Sep
(20030130)

Flexion | 50 | 60
Extension | 5 | 10
R Lat Flexion | WNL | 30
L Lat Flexion | WNL | 30
Comment | Painful motion; tenderness; no spasm; negative straight leg raise, leg strength normal, reflexes normal | Reflexes normal; weakness left ankle extensor (4/5); Positive straight leg raise left; Uses a cane; Increased pain with repeated use.
§4.71a Rating | 10%-20% (PEB 10%) | 20%

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated this condition at 10% under code 5299-5292.  The VA assigned a rating of 20%, under code 5010-5292, for “moderate limitation of motion of the lumbar spine.”  The VA concluded that the diagnosis of “degenerative disc disease with left radiculitis” was not supported by objective evidence, which had all been normal.  Therefore, the VA gave more weight to the “in-service diagnosis of low back pain, myofascial.”

In accordance with DoDI 6040.44, this 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 2004.  The Board must correlate the above clinical data with the 2002 rating schedule, in which the applicable diagnostic codes include (1) 5292, limitation of lumbar spine motion, (2) 5293, intervertebral disc syndrome, and (3) 5295, lumbosacral strain.

The Board first considered the rating under the VASRD diagnostic code 5292 in effect at the time.  Examinations prior to the MEB examination had recorded mixed active ROMs with numerous treatment visits for the back.  The MEB examination recorded “Back” flexion at 50 degrees.  There was no indication that the examiner measured the thoracic spine segment separately from the lumbar spine segment and the 50 degree measurement is most likely for the combined thoracolumbar spine.  The 50 degree measurement aligned with the VA exam measurement of 60 degrees as well as the “60% of expected” motion treatment note and meets the moderate loss of thoracolumbar ROM under code 5292.  The Board also discussed the increase in pain after repetitive motion.

The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293.  An MRI demonstrated no evidence of intervertebral disc disease, and EMG noted no evidence of radiculopathy.  Although the CI did report some radiating pain, all examinations were negative for signs of unfitting radiculopathy or neurologic findings.  The Board concluded that there was insufficient symptomatology or evidence to support a higher rating under 5293 for intervertebral disc syndrome.  The Board finally considered the rating under the code, 5295, lumbosacral strain, but concluded the preponderance of evidence did not support a rating higher that the 10% rating assigned by the PEB.  The CI did exhibit “characteristic pain on motion,” which is consistent with a 10% rating.  However, criteria for a 20% rating under this code were not met, in that the CI did not exhibit either muscle spasm on extreme forward bending or unilateral loss of spine motion while standing.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 20% under VASRD code 5292 for the low 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.  As discussed above, PEB reliance on DoDI 1332.39 and AR 635-40 for rating the low back condition was operant in this case, and the condition was adjudicated independently of that policy by this Board.  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5292, IAW VASRD §4.71a.

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 Low Back Condition | 5292 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120613, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130019771 (PD201200881)

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

PD1200881