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:  PD1201270
BRANCH OF SERVICE:  Army	BOARD DATE:  20130515
SEPARATION DATE:  20030514

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (74B30/Information Systems Operator) medically separated for a low back condition.  Her back pain began in 1994 and since then has consistently been diagnosed as “mechanical lower back pain.”  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent U4/L4 profile and referred for a Medical Evaluation Board (MEB).  The low back condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 and no other conditions were submitted by the MEB.  The Informal PEB adjudicated the mechanical low back pain (LBP) as unfitting, rated 10%.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “Eligibility to apply to the Physical Disability Board of Review (PDBR) for review of initial disability rating review fairness and accuracy ..”

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.

RATING COMPARISON:  

Service IPEB – Dated 20030122 | VA* - (3 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Mechanical Low Back Pain | 5295 | 10% | Limitation of Motion Lumbar Spine | 5292 | 10% | 20030822
No Additional MEB/PEB Entries | Other x 3 | 20030822
Combined:  10% | Combined:  30%
* Derived from VA Rating Decision (VARD) dated 20040303 (most proximate to date of separation)
** In a 20090915 VARD the Spine condition was changed to “Degenerative Disk Disease Lumbar Spine” with a rating of 40% effective 20090506.

ANALYSIS SUMMARY:  The Board acknowledges that VA Compensation & Pension (C&P) examination was referenced, but not available in the evidence before it; and, could not be located after the appropriate inquiries.  Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.  The missing evidence will be referenced below in relevant context; and, it is not suspected that the missing evidence would significantly alter the Board’s recommendations.

Low Back Condition.  Service treatment records indicated a history of chronic LBP beginning in 1994 precipitated by a three mile ruck march.  Range-of-motion (ROM) at orthopedic examination, 22 February 2002, 15 months prior to separation, recorded flexion of 70 degrees and extension “full”.  Approximately a year prior to separation orthopedic consult recorded no neurological deficits and no pain radiation.  On 4 September 2002, 8 months prior to separation, clinic record noted normal gait with intact heel toe walk, and intact sensation.  Although the CI reported episodes of spasms, there was no objective finding of spasms on examinations.  Radiographs of the lumbar spine were all normal.  Although the CI reported intermittent radiation of pain to thoracic spine, all tests for neuropathy were negative.  Orthopedic physician noted surgery was not considered.  No muscle weakness, diminished sensation or asymmetrical reflexes are reported in the treatment records.  Magnetic resonance imaging (6 months after separation) recorded no significant pathology.  A MEB/narrative summary evaluation, 20 November 2002, 6 months prior to separation, symptoms were noted to be persistent and worsening.  Tenderness to palpation was present in mid upper back region.  Limping favoring left lower extremity was recorded.  ROM was recorded with 90 degrees flexion (normal).  Sensation, strength and reflexes were normal.

The VA accepted the Medical Department Activity examination recorded in Japan 22 August, 2003, 3 months after separation, in lieu of the CONUS C&P evaluation.  The examination reported a lumbar flexion of 60 degrees with pain.  The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% for pain on motion code 5295 (lumbosacral strain).  The VA rated 10% for slight limitation of forward flexion code 5292 (limitation of motion).

In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the Veterans Administration Schedule for Rating Disabilities (VASRD) in effect at the time of separation.  The Board must correlate the above clinical data with the 2002 rating schedule which was in effect at the time of separation (applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293, (intervertebral disc syndrome), and 5295 (lumbosacral strain).  The Board considered the rating under 5295, lumbosacral strain, and agreed there was characteristic pain on motion supporting the 10%.  There is insufficient evidence to support the higher rating of 20% since there is no evidence of spasms occurring on extreme forward bending and no documented clinical evidence of spasms in any record prior to separation.  The Board considered the 5292 limitation of motion code and agreed that ROMs in the record supported only a slight limitation of flexion; thus, a rating under this code would be of no benefit to the CI.  The Board considered rating under code 5293 intervertebral disc syndrome.  There was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under this code.  The Board was unable to find any pathway to a higher rating under any applicable VASRD code.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication determination for the chronic LBP 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 mechanical LBP 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
Mechanical Low Back Pain | 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

	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 AR20130010818 (PD201201270)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201270