RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1201388
BRANCH OF SERVICE:  Army	BOARD DATE:  20130910
SEPARATION DATE:  20030113

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (63Y/Track Vehicle Mechanic) medically separated for a lumbar spine condition.  He experienced back pain early in service that was subsequently diagnosed as non-surgical disc disease.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic back pain…” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic back pain, without neurologic abnormality” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and referencing Department of Defense Instruction (DoDI) 1332.39 and AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The condition has become increasingly worse causing many other medical problems relating to my back and head.”

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.  The contended headache condition and any other “medical problems” alluded to in the application were not identified by either the MEB or PEB and are therefore not in the purview of this Board.  Those, or any conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.  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, operating under a different set of laws.

RATING COMPARISON:

Service PEB – Dated 20021025	VA - (2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5295	10%	Herniated Nucleus Pulposis L5-S1	5293-5295	10%	20021107	
No Additional MEB/PEB Entries	Headaches	8100	0%		
	Chronic Neck Pain	5299-5290	NSC		
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20021204.

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The earliest entry in the service treatment record (STR) for back pain was in August 2000, precipitated by unit training.  There are repeated STR entries for the complaint afterwards, documenting persistence in spite of conservative treatment measures.  Plain X-rays demonstrated scoliosis without further abnormality the former a probable contributor to the symptoms.  The CI reported pain radiation and intermittent paresthesias of the left leg in 2002, and magnetic resonance imaging of July 2002 noted central disc protrusion at L5/SI without neural encroachment.  The orthopedic consultant did not recommend surgery and a temporary L3 profile was issued in September 2000.  Failing significant response to various conservative modalities, an MEB was initiated.  Various STR entries document normal gait, grossly (and measured) normal range-of-motion (ROM) and normal neurological findings.  There is no STR evidence for any incapacitating episodes.  The narrative summary noted chronic back pain rated 7 out of 10, interfering with running, bending, squatting and heavy lifting.  The physical exam noted lumbar tenderness, but “full active range of motion,” with 5/5 strength and otherwise normal neurologic findings.  At the VA Compensation and Pension evaluation (2 months prior to separation), the examiner noted “daily pain at 4/10 with a flare up to 8/10,” and recorded left sciatic radicular pain and intermittent paresthesias.  Limitations were not specified, noting that the CI was able to “work in his job” under a profile.  The VA physical exam noted a normal gait, paraspinal tenderness and normal neurological findings.  The ROM was characterized as “full active/passive,” but specified painful motion.

The Board directs attention to its rating recommendation based on the above evidence.  The 2003 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below.
5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20	
Slight ........................................................................................................................................ 10
           5293 Intervertebral disc syndrome:
…
With incapacitating episodes having a total duration of at least one week but less 
than two weeks during the past 12 months ...............................................................................10
   
5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ...................................................... 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
 	          in standing' position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10
The PEB and VA both conferred a 10% rating under 5295 and the single criterion for that rating was supported by the evidence.  The criteria for the higher ratings were not in evidence.  In light of the normal ROM evidence from the Service and VA evaluations no rating greater than 10% can be supported under the alternate code 5292.  There was no evidence for incapacitating episodes that would support a compensable rating under 5293.  The Board further considered whether the associated radiculopathy warranted an additional Service disability rating but members agreed that the requisite link of the neuropathy with functional impairment was not in evidence.  It is also noted that the VA considered separate rating for the neuropathy, pursuing this with an electrophysiologic study.  The VA did not find support for a compensable 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 of the lumbar spine 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.  As noted above, PEB reliance on DoDI 1332.39 and AR 635-40 for its rating was possibly operant in this case; and the lumbar condition was adjudicated independently of that instruction by the Board.  In the matter of the lumbar spine 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 Back Pain without Neurologic Abnormality	5299-5295	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120705, 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 / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20130021919 (PD201201388)

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