RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201343
BRANCH OF SERVICE:  Army	BOARD DATE:  20130430
SEPARATION DATE:  20030425

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantry) medically separated for a chronic low back condition.  The CI first complained of low back pain (LBP) after walking over uneven ground during a firefighting mission in August 2001.  The low back condition could not be adequately rehabilitated 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 low back condition, characterized as chronic LBP due to degenerative joint disease (DDD) and spondylosis was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (see rating chart below) for PEB adjudication.  The Informal PEB (IPEB) adjudicated chronic LBP secondary to DDD L4-L5, L5-S1 without radiculopathy or chronic muscle spasm as unfitting, rated 10% with likely application of the Veterans’ Administration Schedule for Rating Disabilities (VASRD). The other condition was determined to be not unfitting and therefore not ratable.  The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION:  “The injuries to my back, right wrist, hip and both knees have not improved with treatment and convalescence.  After my military service I had to have surgery on my back and left knee (2 times) to maintain my level of disability, these surgeries have not eliminated the conditions.  My back pain and discomfort continue daily, I have increased pain and discomfort with walking distances more than 30 feet at a time, pain with prolonged standing and stiffness and discomfort with prolonged sitting.  I often wear a back brace for support during periods of increased pain.  The right wrist, both knees and hip are similar, regular periods of increased pain in addition to the daily discomfort and pain.  Often during the periods of increased pain and disability I have limitations to daily tasks.  I have sought treatment from the US Department of Veterans Affairs and even with medication and treatment my condition has not improved, often feels that it has worsened when I experience regular flare ups.  Because of the combination of the conditions in my back, hips, knees and right wrist I am unable to maintain gainful employment, my last career was in the heating and air conditioning field, I am no longer able to perform the physical requirements of this field.”  

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 chronic low back condition is addressed below.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in his application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Army Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – Dated 20021212 | VA - (~1 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain Secondary to Degenerative Disc Disease L4/L5, L5/S1 without Radiculopathy (but with Intermittent Radiculitis) or Chronic Muscle Spasm | 5295 | 10% | Degenerative Disc Disease L4-5, L5-S1 | 5293-5295 | 20% | 20030220

Hypothroid Status Post Autoimmune
Thyroiditis

Not Unfitting

Hypothyroidism

7903

10%

20030220

No Additional MEB/PEB Entries | 0% x2 /Other x 3 | 20030220
Combined:  10% | Combined:  40%*
Derived from VA Rating Decision (VARD) dated 20030307 (most proximate to date of separation [DOS]).   
* Combined total rating include all other service connected diagnosis noted by the VA.  The chart reflects only the conditions that the service used during separating the CI for comparison.  

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him, and the significant impact they have had on his quality of life.  It is noted for the record that the Board 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 future severity or potential complications of conditions.  That role and authority is granted to the Department of Veterans Affairs (DVA).  The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation.  The DVA, however, is empowered to compensate for service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Low Back Pain (LBP).  The CI had LBP after walking over uneven terrain, in August 2001.  A month later, he re-injured his back when he picked up a heavy rucksack.  Magnetic resonance imaging (MRI) showed multilevel DDD, with some disc protrusion and mild to moderate foraminal narrowing.  Many different treatment options were tried, but his LBP persisted and a MEB was initiated.  The MEB clinical evaluation was in August 2002, 8 months prior to separation.  The CI reported pain in the lower lumbar region, with intermittent radiation to the left buttock.  On physical examination (PE), he was in no acute distress.  Range-of-motion (ROM) was normal, but flexion and extension at the waist caused pain.  There were no significant biomechanical defects.  Neurological exam was normal.

On 11 October 2002, the CI was seen by neurosurgery.  There was local tenderness at the lumbosacral junction.  Neurological exam revealed normal deep tendon reflexes (DTRs) in all extremities, and negative straight leg raise (SLR).  There was no motor deficit.  The diagnosis was chronic LBP related to DDD at L4-L5 and L5-S1.  Two months prior to separation, the CI had a VA Compensation and Pension (C&P) exam.  He reported LBP, but had no true radicular-type symptoms.  He had no muscle spasms or true weakness.  His medications at that time included Paxil and Oxycodone.  PE of the spine revealed a normal appearing curvature, with mild tenderness to percussion over the lower lumbar area.  Forward flexion at the waist was 80 degrees, extension 20 degrees, lateral bending 30 degrees (left & right), and rotation was 30 degrees (left & right).  All these motions produced discomfort in the lower lumbar area.

The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence.  The Army PEB and the VA chose different coding and rating options for the LBP condition.  The VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were changed in September 2003.  The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment.  IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation.

Based on a thorough review of the evidence in the service treatment record (STR), the Board determined that IAW VASRD §4.71a, the CI’s LBP condition was best described as “slight”.  There was insufficient evidence to support classifying the condition as “moderate” or “severe”. After due deliberation, the Board determined that a separation disability rating of 10% was warranted due to his slight limitation of lumbar motion.  The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a rating higher than 10%, since the STR did not show sufficient evidence of a disabling lumbar spine abnormality which would justify a rating higher than 10%.  The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the STR, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties.  Therefore, there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt) and VASRD §4.7 (Higher of two evaluations), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the 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.  In the matter of the chronic LBP condition, the Board unanimously recommends no change in the PEB adjudication, IAW §4.71a of the VASRD that was in effect at the time of separation.  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 Low Back Pain, Secondary to Degenerative Disc Disease | 5295 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120727, 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 AR20130010375 (PD201201343)

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

PD1201343