RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXX                                                                                           BRANCH OF SERVICE:  ARMY
CASE NUMBER:  PD1200933                                                             SEPARATION DATE:  20030222
BOARD DATE:  20130307

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, SPC/E-4(77F/Petroluem Supply Specialist), medically separated for a lumbar spine condition.  He injured his back while lifting in 2001, and was subsequently diagnosed with non-surgical degenerative disc disease (ddd).  He did not respond adequately to conservative measures 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 condition, characterized as “recurrent chronic low back pain without radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (ipeb) adjudicated the lumbar spine condition as unfitting, rated 10%, citing criteria of the Veterans Administration Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with that disability rating.

CI CONTENTION:  The application states, “Rating should be higher or equivalent to VA’s rating decision.  Army rated service member at 10%.  VA rated service member at 40% for the same condition found unfit.”

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 lumbar spine 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 Army Board for Correction of Military Records.

RATING COMPARISON:  

Service PEB – Dated 20021119	VA - Based on Service Treatment Record (STR) VARD 20040224	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5295	10%	Back Injury	5237	NSC*	STR	
No Additional MEB/PEB Entries	Other X 0	STR	
Combined:  10%	Combined: 0%*	
* Original VA rating decision did not service connect (NSC) the condition because of incomplete records; but did so after complete records were received.  The subsequent 40% rating (VARD 20090321), however, was derived from a VA examination performed 20090210 (6 years after separation). 

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  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.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code).  The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.

Chronic Low Back Pain .  The narrative summary (NARSUM) notes the CI sustained a lifting injury in March 2001 causing severe low back pain (LBP).  He recovered and was well for a time but had the return of frequent LBP increased by exercise.  The pain was across the low back without radiation to the lower extremities.  The CI reported two episodes of bowel incontinence, but no neurological abnormalities were noted in the emergency room.  Lumbosacral X-ray and magnetic resonance imaging (MRI) showed a transitional vertebra with sacralization of L5.  There was mild disc bulging at this level with without nerve compression.  At the MEB evaluation on 16 October 2002, 4 months prior separation, the CI reported LBP and numbness.  The MEB exam described back range-of-motion (ROM) as “forward bending with reach to within 60 cm of the floor” left and right lateral bending was 30 degrees (normal 30 degrees).  There was muscle spasm on the left greater than the right with all motions.  There was pain to palpation of the lumbar spine.  Straight leg raising (SLR) “in stance” caused muscle spasm, but seated straight leg raising did not.  The CI lifted both legs from the table without difficulty but grimaced.  Bringing his knees to his chest and his chin to his chest caused increased LBP.  Reflexes, sensation, and motor strength were normal.  There were no sciatic stretch signs present.  At the VA Compensation and Pension (C&P) exam performed in March 2009 ( 6 years after separation) the CI reported that his back pain without radiation was worse.  He reported flare- ups of moderate severity every one to 2 months that lasted one to 2 days.  He reported being able to walk up to three miles.  The spine exam showed a normal gait without spasm.  Muscle tone, reflexes and strength were all normal.  Range of thoracolumbar (TL) flexion was 37 degrees (normal 90 degrees) with objective pain with repetitive motion.  SLR was reported as positive bilaterally.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated 5299-5295 (analogous to lumbosacral strain) at 10% (characteristic pain on motion).  In 2009 the VA rated, retroactive to the date of separation, as 5242 (degenerative arthritis of the spine) at 10% and increased to 20% effective October 2008.  The Board must apply the VASRD rating criteria in effect on the date of the CI’s separation and the Board did so.  The Board deliberated coding as 5295 at 10% or 20%; or using 5292 (limited motion of the lumbar spine).  There were many visits for back pain with spasm noted in the service treatment record (STR) and at the MEB exam there was muscle spasm, greater on the left than right, and pain with motion noted, with no evidence of radiculopathy.  The Board opined that the CI most nearly met the criteria for the 20% moderate rating of code 5295 with muscle spasm on forward bending, and painful motion.  The Board considered that the NARSUM noted a thoracic spine abnormality and tenderness that may have added to the back ROM limitation; however there is no thoracic ROM evidence in the record.  Therefore, the Board adjudged that affording the benefit of reasonable doubt to the CI, the limitation of “can reach to within 60 centimeters of the floor” was consistent with a moderate limitation of lumbar ROM.  The Board surmised that coding with either 5295 or 5292 provided a path to a 20% rating and chose 5295.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% coded 5299-5295 for the chronic 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 back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5295 IAW VASRD §4.71a.  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 Condition	5299-5295	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120620, 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-Z), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130005073 (PD201200933)

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