RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	BRANCH OF SERVICE:   Army
CASE NUMBER:  PD1201180	SEPARATION DATE:  20030918
BOARD DATE:  20130410

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (63W/Wheel Vehicle Repairer), medically separated for low back pain (LBP).  The CI had a history of chronic back pain beginning in 2000 after a head injury.  No surgical interventions were indicated and the condition did not improve adequately with 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 was referred for a Medical Evaluation Board (MEB).  Scoliosis, identified in the rating chart below, was also identified and forwarded by the MEB as meeting retention standards.  The Physical Evaluation Board (PEB) adjudicated the LBP condition as unfitting, rated 0% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The scoliosis condition was considered to be not unfitting and not rated by the PEB.  The CI appealed his Informal Physical Evaluation Board (IPEB) findings but waived a Formal PEB (FPEB).  Upon review at the US Army Physical Disability Agency (USAPDA), the IPEB findings were affirmed.  He was then medically separated with a 0% disability rating.

CI CONTENTION:  “I have tried several jobs and the job I have now is hard on my back but is only job that pays enough to support myself.  I am a utility work full (sic) ground line & do a lot of lifting, standing and a lot of uncomfortable positions.  Every day is hard but it is the only job I have so I put up with it. I get monthly massages to correct damage and a chiropractor when I can afford it.  I wish when I was discharged someone could have told he what was wrong with my back.  I am in pain everyday most days I can work through the pain, but some its very hard without pain meds.”

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 condition(s) “identified but not determined to be unfitting by the PEB.”  The ratings for unfitting conditions will be reviewed in all cases.  The MEB condition scoliosis, and the rated condition, LBP, meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below.  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 20030502	VA (3 Mos. Post-Separation) – All Effective Date 20030919	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5295	0%	Lumbosacral/Dorsal Spine Strain	5237	10%	20031209	
Scoliosis	Not Unfitting	NO VA ENTRY	
Rating:  0%	Rating:  10%	

ANALYSIS SUMMARY:  The Board acknowledges the CI’s statement regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System (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, operating under a different set of laws.

Low Back Pain and Scoliosis Condition.  Back pain emerged after a concussive injury in June 2000.  Service treatment record (STR) entries dating to 2001 document pain worse with prolonged sitting, standing, running, and heavy lifting.  Radiographic evaluation demonstrated mild scoliosis of the thoracolumbar spine and the pain was managed conservatively with intermittent resolution.  The orthopedic examination at the time noted a well-aligned spine with minimal tenderness to palpation along the paraspinal muscles.  The narrative summary (NARSUM) dictated 13 months prior to separation noted resolution of the back pain with rest and stretching exercises; and lower back pain aggravation with road marches and strenuous physical activity.  The NARSUM physical examination was significant for tenderness to palpation along the thoracolumbar paraspinal area, no evidence of muscle spasms, and pain limited extension and lateral bending motion.  Although the listed normal range-of-motion (ROM) were not in effect at the time of the separation, there were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM
(Degrees)	NARSUM~13 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	90	84	
Ext (0-30)	20	18	
R Lat Flex (0-30)	30	19	
L Lat Flex 0-30)	30	21	
R Rotation (0-30)	30	--	
L Rotation (0-30)	30	--	
Combined (240⁰)	230		
Comment: listed normal  ROM were not in effective at the time of the examination	 +painful motion +tenderness to palpation	Pain on motion	
§4.71a Rating	10%	10%	

At the VA Compensation and Pension (C&P) examination performed 3 months after separation, the examiner noted no spasms or deformities of the lumbosacral spine; pain limited thoracolumbar motion, and motor strength and reflexes were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s rating analogous to 5295 (lumbosacral strain) cited a rating based on subjective pain.  The criterion of pain on motion was met for a 10% rating under 5295, as evidenced by the NARSUM and C&P examinations; but, the criteria for a higher rating under that code were not met.  The Board also noted that localized tenderness would also meet the 10% criteria for VASRD codes 5237, as conferred by VA, IAW the “new” VASRD spine rating schedule in effect 8 days after the CI’s separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the lower back 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 lower back condition, the Board unanimously recommends a disability rating of 10%, coded 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	
Lumbosacral Strain	5295	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120608, 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 AR20130009476 (PD201201180)

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 10% 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