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:  	BRANCH OF SERVICE:   Army
CASE NUMBER:  PD1201793	SEPARATION DATE:  20020314
BOARD DATE:  20130507

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, SPC/E-4, (75H/Personnel Service Specialist), medically separated for chronic low back pain (LBP).  The CI initially injured her back during a road march while in Basic Training in October 1999.  The CIs back pain condition did not improve adequately with treatment to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L4 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication.  The PEB adjudicated her low back condition as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION:  “I was separated for my back and thyroid disease.  I was told I couldn’t claim thyroid disorder or my PTSD.  I was told they was processing my claim quick so I could get out.  I had more than one disability at time of discharge, but was not given the option to claim all of them and my back was in really bad shape that cause other parts of my body to be affected, but that was not considered either.”

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 other requested conditions, posttraumatic stress disorder (PTSD) and thyroid disease are not within the Board’s purview.  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 respective Service Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – Dated 20020125 | VA (1 Mos. Pre-Separation) – All Effective Date 20020315
Condition | Code | Rating | Condition | Code | Rating | Exam
Low Back Pain | 5299-5295 | 10% | Low Back Pain | 5299-5295 | 10% | 20030221
↓No Additional MEB/PEB Entries↓ | Hemorrhoids | 7336 | 10% | 20030221
| Scar, Neck s/p Hemithyroidectomy | 7800 | 10% | 20030221
| Hypothyroid Disease | 7903 | 10% | 20030221
| Migraines | 8100 | 10% | 20030221
| Carpal Tunnel R wrist | 8599-8515 | 10% | 20030221
| 0% X 2 / Not Service-Connected x 6 |
Combined:  10% | Combined: 50%

*Low back pain increased to 20% on 20030606 VARD with effective date of DOS 
** R wrist carpal tunnel added on 20040218 VARD with effective date of DOS

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.  The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Low Back Pain Condition.  The narrative summary (NARSUM) report of chronic LBP since basic training which the CI stated she sucked up and finished training.  Review of the service treatment records (STRs) reflects initial care for complaints of back pain in September 2000 while the CI was pregnant.  She delivered her child 25 April 2001.  On 5 June 2001, she sought care for LBP for 2 weeks in duration.  On examination there was tenderness.  Range-of-motion (ROM) was indicated as normal.  Straight leg raising (SLR) was negative for radicular signs and strength and reflexes were normal.  The provider diagnosed periodic mechanical LBP and advised analgesic medication and physical therapy.  On 16 September 2001, the CI passed the Army physical fitness test by performing 50 push-ups, 75 sit-ups, and completing the two mile run in 17 minutes.  At a clinic encounter on 20 September 2001, the CI reported back pain increased by menstruation.  A history of back pain for “years” was noted, unresolved with physical therapy.  Extremity strength was noted to be normal on examination.  In October 2001 the CI complained of back pain with numbness and loss of muscle strength in the legs and requested a letter of recommendation for a medical board.  X-rays of the lumbosacral spine demonstrated degenerative joint disease (DJD) of the facet joints at L5 and S1 as well as possible spondylolysis at L5-S1.  A subsequent magnetic resonance imaging (MRI) performed on 2 November 2001 was reported as normal.  Due to persisting complaint of LBP, an L4 profile was issued and a MEB initiated.  The commander’s letter dated 21 November 2001 noted the CI’s profile for her back pain prevented performance of the physical activity required of a Soldier however she was satisfactorily performing administrative duties in a high visibility position.  At the time of the NARSUM examination 12 December 2001, 3 months prior to separation, the CI stated the pain exacerbated to the point where her legs and feet felt numb and was not alleviated by medication, physical therapy, and profiling.  The CI rated the pain 8 out of 10 (ten being the maximum level of pain experienced), increased with activity.  The CI could not participate in road marches, carry a weapon or get out of a foxhole; all of the above being activities required by her MOS.  Physical exam noted tenderness to palpation in the lumbar area, bilaterally, with decreased range of motion (flexion and extension) secondary to pain.  At the VA Compensation and Pension (C&P) exam, 21 February 2003, almost 12 months after separation, the CI reported continued back pain aggravated with activity and reduced with medication.  The CI stated the pain radiated down her legs into her feet.  She stated she worked as a cosmetologist but had to quit her job secondary to back pain, extremity numbness and headaches.  She also worked as a therapeutic center houseparent but quit secondary to many missed days from work also due to pain.  The examiner noted the CI ambulated with a steady gait and had a good posture however she appeared to move extremely rigid and purposeful.  The spine had no deformities and the muscular exam was normal.  There was paraspinal tenderness to light palpation in the lumbar area.  ROM for the lumbar spine evidenced flexion of 60 degrees, extension of 20 degrees, lateral flexion of 20 degrees bilaterally, rotation of 20 degrees bilaterally, all movements limited by pain.  Neurologic exam was normal with steady gait, and normal reflexes.  Sensation was decreased on the feet.  X-rays of the lumbosacral spine were reported as normal.  The C&P examiner cited recent electrodiagnostic testing that indicated peripheral neuropathy of the left foot but not radiculopathy (left sural, medial plantar and lateral plantar neuropathy).  

The Board directs attention to its rating recommendation based on the above evidence.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board notes that the 2002 Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004.  The Board must correlate the above clinical data with the 2002 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome; 5295 lumbosacral strain, 5285 vertebral fracture,  5289, ankylosis).  The PEB rated the CI’s back pain condition at 10%, coded analogously to 5295 (lumbosacral strain) citing some reduction in ROM due to pain without muscle spasm or radiculopathy.  The VA Rating Decision dated 2 December 2002, initially rated the back condition 10% (5295) based on the evidence of the service treatment record.  Based on the aforementioned C&P examination, the VA subsequently increased the rating to 20% effective at the time of separation, considering the limitation of motion of the lumbar spine as moderate.  The Board considered the rating under the VASRD diagnostic code 5292, limitation of lumbar motion.  Although the C&P examination a year after separation approached a moderate limitation of motion, clinical examinations prior to separation did not reflect a limitation of motion to that degree.  The CI passed the fitness test in September 2001 and subsequent complaints of back pain were not explained by recurrent injury, unaccompanied by muscle spasm, and MRI examination was normal.  The Board concluded the preponderance of evidence more nearly approximated a 10% rating based on limitation of motion at the time of separation.  The apparent worsening a year later did not directly reflect on the condition at the time of separation.  The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293, however while there were some complaints of radiating pain, there was no evidence of intervertebral disc syndrome.  There was no fracture or ankylosis to support consideration under the respective codes (5285 and 5289).  The Board also considered the rating under the code, 5295, lumbosacral strain but concluded the preponderance of evidence did not support a rating higher that the 10% rating assigned by the PEB.  There was characteristic pain on motion but no muscle spasm, or unilateral loss of lateral motion, or evidence of severe strain with listing or marked limitation of motion.  There was no evidence of ratable peripheral nerve impairment around the time of separation which would provide for additional or 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 low back pain 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 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
Low Back Pain | 5299-5295 | 10%
RATING | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121001, 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 AR20130011451 (PD201201793)

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

PD1201793