RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1201239
BRANCH OF SERVICE:  Army	BOARD DATE:  20130718
SEPARATION DATE:  20040118

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (95B/Military Policeman) medically separated for mid and low back pain.  In April 2002, during Advanced Individual Training (AIT), the CI reportedly slipped and fell while climbing a rope and landed on his buttocks.  He did not seek treatment until he arrived at his first duty station several months later.  He was seen by physical therapy and physical medicine and rehabilitation with no reported improvement.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The IPEB adjudicated “chronic mid and low back pain” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Back injury is preventing me from securing specific employment.  This lead to anxiety, depression and adjustment issues.  I was treated with narcotics while on active duty.  Unfortunately this lead to an addiction.  I went to rehab and I am in recovery.  Due to my addiction and transportation issues and impaired judgement I missed many appointments.  I suffered from anxiety, adjustment issues and depression since discharge from active duty. I was medically discharged.”

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 back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The anxiety, depression, adjustment issues, and drug addiction conditions specified in the application were not identified and adjudicated by the PEB, and thus are not 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.

RATING COMPARISON:

Service IPEB – Dated 20031027	VA - (4.5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mid and Low Back Pain	5237	10%	Bulging Disc at T11-T12	5243	0%*	20040603	
No Additional MEB/PEB Entries	Other x 0	20040603	
Rating:  10%	Rating:  0%	

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; 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; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  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.

Back Pain, Disc Protrusion T11-T12.  The narrative summary dated 5 September 2003 noted the intermittent mid-back pain began after the CI fell from a rope during AIT in April 2002.  Magnetic resonance imaging on 28 May 2003 showed small disk protrusion with minimal right anterior cord defect at T11-T12 level, “probable Gibbs artifact from spinal fluid flow overlying the central cord at roughly T7.”  Treatment records were scarce beginning with the time of injury, with a total of three in 2002 and two in 2003, although an additional two were referenced in the NARSUM.  Treatment records indicated the CI participated briefly in physical therapy and reported pain relief with medication and therapy.  At the physical therapy follow up visit dated 24 April 2003, approximately 9 months prior to separation, the CI indicated his pain was responsive to medication and he experienced some irritation with firing on the rifle range.  Range-of-motion (ROM) recorded during physical therapy visit on 7 October 2003, approximately 3 months prior to separation, revealed thoracolumbar flexion at 110 degrees and extension at 10.  Treatment note dated 27 February 2003 recorded the CI underwent high velocity, low amplitude back manipulation procedure to correct a small thoracic subluxation.  There were no other treatment entries that referenced a subluxation or any pathological symptoms or sequelae of a subluxation.  The CI’s profile allowed him to perform knee bender, upper/lower back stretches, upper and lower body weight training, run and swim at own pace and march up to 10 miles and lift up to 60 pounds.  At the MEB/NARSUM exam, approximately 4 months prior to separation, the CI reported mid-back pain at rest of 1/10.  Pain level during periods of exacerbation was noted on the scale of one to 10 as an 8 and lasted a few seconds.  The CI noted aggravating factors were twisting motion or standing for greater than an hour.  He noted his pain had decreased and resolved over time and reported he had approximately 4-5 additional episodes of pain exacerbation after a period of remission.  The MEB examiner referenced the musculoskeletal examination performed by sports medicine that recorded tenderness to palpation of T10-T12, no signs of inflammation or deformity, with ROM of 80 degrees on forward flexion, without pain, and 20 degrees of extension with pain.  At the VA Compensation and Pension examination dated 3 June 2004, approximately 4 months after separation, the CI reported a chronic low-grade pain in the lower thoracic region, 3 on a scale of 10.  Prolonged standing or sitting in a single position evoked more pain.  He stated he could not run because of back pain but was able to use a stair stepper and exercise in the gym 5 days a week.  The CI indicated he was working in sales at Home Depot and attending college.  Physical examination of the spine recorded a ROM of forward flexion at 95 degrees and extension of 30 degrees without noted pain on motion, and no lack of endurance.  The physician noted lumbar radiographs were done in error, however, revealed no evidence of compression, or vertebral deformity or disc space narrowing.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10%, coded 5237 (lumbosacral strain) with the notation of full ROM, no spasm or radiculopathy.  The VA assigned a non-compensable evaluation of 0%, coded 5243, citing full ROM, lack of pain and no lack of endurance on examination.  A higher rating of 20% under code 5237 requires spasms producing abnormal gait or abnormal curvature of the spine or forward flexion not greater than 60 degrees, not supported by the evidence in record.  The Board agreed there was pain supporting the 10%; however, there is insufficient evidence to support the higher rating of 20%.  The Board reviewed the treatment records and noted there was no evidence of ratable peripheral nerve impairment in this case, no episodes of incapacitation, and no muscle weakness with loss of function, therefore, code 5243 (intervertebral disc syndrome) was not applicable.  The Board unanimously agreed the mid-back condition did not rise to a level of compensability under §4.59 or §4.40.  There is no VASRD sanctioned pathway to a higher rating.  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 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 back 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 Mid and Low Back Pain	5237	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120720, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / XXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20130021922 (PD201201239)

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA