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:  PD1201961
BRANCH OF SERVICE:  army	BOARD DATE:  20120621
SEPARATION DATE:  20050818

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (91K/Medical Laboratory Technician) medically separated for a lumbar spine condition.  She first experienced back pain in basic training in 2002, but managed to complete advanced training and deployment with conservative treatment and temporary profiles.  She was diagnosed with non-surgical disc disease in 2005 which 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar condition, as the sole submission, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB adjudicated “chronic non-radiating low back pain” (specifying L4/5 disc herniation) as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).   The CI made no appeals and was medically separated.

CI CONTENTION:  “No images were used in the assessment of the disability.  Post-discharge, VA determined "back pain" to be caused by extensive arthritis secondary to fracturing in vertebrae and is treating accordingly.”

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 lumbar spine 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 20050706 | VA -  Based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain | 5243 | 10% | Thoracic/Lumbar Dysfunction | 5299-5237 | 0* | STR
Combined:  10% | Combined:  0%
Derived from VA Rating Decision (VARD) dated 200600329 (most proximate to date of separation [DOS]). 
* CI failed to show for initial VA rating evaluation, and VARD indicates lack of VA evidence as basis for 0% rating.  First VA
   evaluation was dated 20071003 (26 months post-separation).  Subsequent VARD dated 20071205 increased rating to 20%
   based on that exam, effective 20070821 (2 years post-separation).   

ANALYSIS SUMMARY:  The Board notes the earliest VA evaluation was >2 years after the date of separation.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  Therefore the evidence from the service treatment record (STR) was assigned the predominant probative value with respect to the Board’s recommendation.

Lumbar Spine Condition.   The CI was treated as an inpatient for back pain during basic training, but recovered sufficiently to successfully complete advanced training and initial assignments.  She remained on temporary profiles and did not participate in physical fitness testing after advanced training.  Initial X-rays were normal except for a report of “minimal” scoliosis.  Under a temporary profile, the CI successfully completed a 2004–2005 deployment to Iraq.  Her back pain was more severe on redeployment, however, and imaging revealed disc protrusion at L4/5 without neural encroachment.  There were no radicular symptoms or neurologic exam abnormalities; surgery was not recommended; and, in March 2005 she was referred for a MEB.  Outpatient notes document a normal gait, and only modest range-of-motion (ROM) limitations (painful motion specified).  No incapacitating episodes are in evidence.  The narrative summary (NARSUM) noted average pain rated 4/10 with exacerbations to 8/10; and limitations on running, ruck marching, lifting, and physical exercises.  The physical exam documented “sitting comfortably,” “mildly prominent kyphosis and lordosis” and paraspinal tenderness; but, no bony tenderness or notation of associated spasm.  Lower extremity strength and neurological testing was normal.  The documented ROM measurements were flexion to 80 degrees (normal 90 degrees) and combined ROM of 200 degrees (normal 240 degrees).  The marginally probative (2+ years post-separation) VA Compensation and Pension evaluation documented civilian employment as a security supervisor with continued non-radicular back pain (acuity not elaborated).  It noted normal gait, no spasm, and specified the absence of findings severe enough to produce abnormal contour.  Lumbar flexion was documented as 40 degrees, which was the basis for the VA’s 20% rating.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5243 (intervertebral disc syndrome) was IAW the VASRD §4.71a spine rating formula for the ROMs in evidence.  The ROM documented in the NARSUM was consistent with the probative outpatient evidence; and, all members agreed that the VA ROM evidence is too remote from separation and incongruent with acuity at separation to carry significant probative weight.  Members deliberated the option of recommending a 20% rating IAW the §4.71a stipulation for “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.”  Members agreed, however, that the lack of spasm and minimal ROM impairment would not support a conclusion that the contour comment quoted from the NARSUM constituted a ratable finding; but was rather an incidental anatomic observation.  The VA examiner expressed the same opinion.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes in this case 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 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.  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 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 Low Back with Lumbar Disc Herniation | 5243 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121120, 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 AR20130018763 (PD201201961)

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

PD1201961