Author: JOHN J. D'ORAZIO
Last saved by: Weathers, Janice R SrA MIL USAF AFDW SAF/MRBD
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD1200909
BRANCH OF SERVICE:  Army	BOARD DATE:  20140220
SEPARATION DATE:  20030813

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92A/Automated Warehouse Specialist) medically separated for a lumbar spine condition.  She injured her back in a 1995 vehicular accident and experienced intermittent exacerbations of back pain afterwards.  She was diagnosed with non-surgical disc disease which did not adequately respond to conservative measures to meet the requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic back pain, with sacroiliac joint dysfunction, without neurologic abnormality,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the condition as unfitting, rated 10%, specifically referencing DoDI 1332.39 and AR 635-40, although also citing criteria of the VA Schedule for Rating Disabilities (VASRD) in effect.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The conditions haven’t gotten better they have gotten 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 unfitting 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 Board for Correction of Military Records.  The Board acknowledges the CI’s information regarding the worsening impairment with which her service-connected conditions continues to burden her; but, must emphasize that the Disability Evaluation System 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; but 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 20030709 | VA - (4 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Back Pain … | 5299-5295 | 10% | Herniated Disc Lumbar Area L4-5 | 5292 | 10% | 20030430
No Additional MEB/PEB Entries | Other: 10% X 5; 0% X 5 | 20030430
Combined:  10% | Combined:  50%
Derived from VA Rating Decision (VARD) dated 20030821 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The service treatment record (STR) corroborates an onset of lumbar symptoms from the 1995 injury.  There are sparse entries until late 2002, when increasing frequencies of clinical encounters for back pain are noted.  In December 2002 (8 months prior to separation) imaging demonstrated “minimal disc bulge” at L4/5 without neural encroachment, and mild degenerative changes at contiguous levels; and, a neurosurgical consultant opined that surgical intervention was not indicated.  There is a subsequent entry from a civilian provider that the CI was complaining of severe left lower extremity radicular pain and subjective weakness; although there were no neurological motor or sensory deficits (left tendon reflexes were diminished).  Epidural steroid injections ensued, and follow-up entries note some improvement, but significant symptoms continued.  The STR provides no evidence of significantly impaired range-of-motion (ROM), significant neurological deficits or physician directed quarters or bed rest.  There was transient gait disturbance which did not appear to be present at separation.  The narrative summary (NARSUM) characterized the pain as slight and constant, interfering with prolonged standing, running, lifting and various MOS/soldiering requirements.  The physical exam noted a normal gait and “full” ROM, but pain with flexion.  No radicular symptoms were documented, and neurological findings were normal.  The VA Compensation and Pension examination was performed a month after the NARSUM exam, and 4 months prior to separation.  This noted “constant back discomfort, numbness, tingling sensation” with radiation down both legs.  The examiner specifically documented the absence of incapacitation or work loss.  The physical exam noted a normal gait, no spasm or tenderness, and normal neurological findings.  The ROM measurements were flexion 70 degrees (noting normal 95 degrees) and combined ROM of 215 degrees (noting total normal of 280 degrees).  Records indicated no VA back rating change through 2013, and no VA peripheral nerve rating.

The Board directs attention to its rating recommendation based on the above evidence.  The VASRD coding and rating standards for the spine which were in effect, and must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below.
5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20	
Slight ........................................................................................................................................ 10
           5293 Intervertebral disc syndrome: 
[Interim rules for this adjudication date permit alternative rating for incapacitating episodes.]
Pronounced; with persistent symptoms compatible with: sciatic neuropathy with 
   characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other 
   neurological findings appropriate to site of diseased disc, little intermittent relief ............ 60
Severe; recurring attacks, with intermittent relief .................................................................. 40
Moderate; recurring attacks .................................................................................................... 20
Mild .......................................................................................................................................... 10
Postoperative, cured ................................................................................................................. 0
5294 Sacro-iliac injury and weakness [directs rating to 5295]
5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ...................................................... 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
	          in standing' position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10

The PEB’s 10% rating under 5295 is supported by the criteria of that code, and the criteria for the higher ratings were not in evidence.  The VA rating under 5292 for limitation of motion was also reasonable given the degree of ROM reduction reported by the VA examiner.  Especially in light of the normal ROM evidence from the service file, all members agreed that a recommendation for a higher rating under 5292 could not be justified.  The only remaining available code is 5293 (intervertebral disc syndrome), which would achieve at best the minimal compensable rating of 10%.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes which would support additional or higher rating.  Records indicate that the VA 10% rating has remained unchanged through 2013, and no associated peripheral nerve rating for radiculopathy has been conferred.  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 of the lumbar spine 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 was operant in this case and the lumbar condition was adjudicated independently of that guidance by the Board.  In the matter of the lumbar spine condition and IAW VASRD §4.71a (in effect), 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 Back Pain with Sacroiliac Joint Dysfunction | 5299-5295 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120611, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20140007720 (PD201200909)

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						    XXXXXXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD1200909