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:  PD1201969
BRANCH OF SERVICE:  Army	BOARD DATE:  20130620
SEPARATION DATE:  20031108

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (77F10/Petroleum Specialist) medically separated for back condition.  The CI was involved in a motor vehicle accident (MVA), in 2000, resulting in back pain for which he was treated conservatively.  The 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 U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The mechanical low back pain (LBP) condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated the chronic mechanical LBP condition as unfitting, rated 10%, with cited application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “At time of medical separation process, I was expedited and shoved through the board without properly taking into consideration the nature of separation.  Please review records and request VA file.”

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 mechanical LBP condition is addressed below.  No other conditions were identified by the MEB or PEB; and, thus there are no other conditions within the DoDI 6040.44 defined purview of the Board.  Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records (BCMR).

The Board acknowledges the CI’s assertions that his disability disposition was rushed.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

RATING COMPARISON:

Service IPEB – Dated 20030626 | VA* - (~4 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Mechanical Low Back Pain | 5299-5295 | 10% | Degenerative Disc Disease Lumbar Spine L1-L4 Bulge L1-L2 | 5293-5243 | 10%** | 20030619
No Additional MEB/PEB Entries | Other x 11 | 20030619
Combined:  10% | Combined:  30%
* Derived from VA Rating Decision (VARD) dated 20031114 (most proximate to date of separation (DOS))
** VARD 20030716 rated 20% based C&P 20030619; later VARD 20050312 rated 40% based on C&P 20050123

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 Veteran 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 Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Chronic Mechanical Low Back Pain Condition.  The CI was first evaluated for LBP in April 2000 after heavy lifting.  X-ray examination of the lumbar spine performed on 10 April 2000 revealed a “mild S-shaped curvature” of the spine, but was “otherwise unremarkable” and he was treated conservatively.  On 11 June 2000, the CI was the belted driver of a fuel truck which rolled over during night maneuvers.  He was taken to the emergency department, where he reported “overall body soreness” and pain in his upper and lower back.  The CI denied any loss of consciousness and was ambulating at the scene.  He was without neurological deficits and his spine cleared on X-ray.  The CI was treated conservatively with medications, chiropractic treatments, and physical therapy (PT) with apparent resolution of his LBP.  On 5 December 2000, 6 months after the accident, he applied and qualified for airborne training.  On the history form, he denied problems, including back pain or LOC, other than the use of glasses to correct his vision.  The neurological, spine and lower extremity examinations were normal.  While in airborne training, he had recurrent LBP and was again treated conservatively.  X-ray examination of the lumbar spine performed on 22 March 2001 revealed a mild left curvature in the mid lumbar spine and mild spondylosis (degenerative changes) T12-L1.  He continued to have symptoms and was evaluated by a neurologist on 29 June 2001.  The CI reported that he had been upside down in the cab of the truck held by the seatbelt until he was able to release it.  On examination, his strength was normal and reflexes diminished, but symmetric.  Forward flexion was painful.  He was thought to have some evidence of a lumbar radiculopathy and further evaluation including electrodiagnostic testing and a repeat magnetic resonance imaging (MRI) exam was recommended.  An MRI performed on 18 July 2001 revealed mild disc desiccation (degenerative changes) at the L1-2 and L3-4 levels.  There was “mild spondylotic changes versus a broad-based disc bulge at L1-2 level without significant spinal canal or neural foraminal narrowing.”  On examination in flight medicine on 27 July 2001, he was noted to have a normal gait and neurological examination.  He had full flexion of the lumbar spine.  At a follow-up visit in neurology on 13 August 2001, the CI reported that he could run without pain, but was uncomfortable afterwards.  The neurologist note that the electrodiagnostic studies showed “no evidence of denervation in the left lower extremity.”  He continued to have pain and was seen periodically.  On 1 August 2002, he was evaluated in orthopedics.  The examination was normal other than bilateral hamstring tightness and spasm in the left thoracic and lumbar spine area.  The examiner recommended PT.  A second MRI, performed on 15 August 2002, reported disc desiccation and spondylosis at T12-L1, but without nerve impingement.  Otherwise, there was no abnormality of lumbar spine.  X-rays of the lumbar spine that day were normal.  The CI received one epidural steroid injection on 25 September 2002, which aggravated his back pain.  The CI was seen in the emergency department, on 26 October 2002, due to a 2-day history of increased LBP.  The CI was treated with an injection of Toradol (a non-steroidal anti-inflammatory drug) and a narcotic pain reliever.  The examiner recommended “rest over the weekend” and instructed the CI to follow-up with primary care on Monday.  The CI was seen in orthopedics on 30 October 2002 and noted to have right lower extremity pain and worsening LBP.  He was tender over the lumbar paraspinal muscles and sacroiliac joints.  The CI was referred to a second orthopedist and seen on 7 November 2002.  The CI reported left lower extremity pain and limitation in walking to 1-2 blocks.  He continued to work full time at his job without restrictions.  On examination, he had a normal gait and posture and provocative testing for nerve root irritation, a straight leg raise (SLR), was negative bilaterally.  The neurological examination was normal for strength, sensation, and reflexes.  Repeat MRIs were recommended.  An X-ray of the spine on that day revealed degenerative changes of the lumbar spine.  An MRI on 9 December 2002, his third, revealed disc desiccation, disc interval narrowing, and hypertrophic changes with spondylosis at T12-L1.  This was associated with a “mild” posterior broad-based disc bulge that flattened the thecal sac without spinal stenosis or neural foraminal narrowing.  The MRI reported noted a small Schmorl’s node (protrusion of the cartilage into the disc body) at L3.  The description is essentially unchanged from the MRI the previous August.  The CI was referred to a MOS Medical Retention Board (MMRB) on 18 March 2003 and it was determined that he not be retained in his current MOS or cross-trained into another MOS.  The commander’s statement dated 18 May 2003 reported that the CI’s duty performance had been “outstanding” since October 2000; however, the CI’s ability to perform his assigned tasks had been “very limited.”  The CI took an alternate Army Physical Fitness Test, on 23 August 2002, which included push-ups and a two and a half mile walk.  The MEB narrative summary dictated on 20 May 2003, 5 months prior to separation.  It noted that the LBP condition developed several hours after he extricated himself from the truck; after the MVA.  The CI reported that the pain radiated into his left lower extremity and that he was unable to run, do pushups or sit-ups, or walk more than a half of a mile.  The CI reported difficulty standing for greater than 15 minutes and sitting for longer than 10 minutes.  He was unable to lift, carry, push, or pull anything weighing more than 15 pounds.  The examiner noted “superficial” tenderness to palpation (TTP) noted in the midline and paraspinal areas (T5 – sacrum).  No spasm was documented.  There was TTP over the sacroiliac joints.  The range-of-motion (ROM) examination is displayed in the chart below.  The motor and sensory examinations were normal.  Deep tendon reflexes (DTRs) were equal bilaterally.  The examiner noted that the CI was able to walk on toes and heels and squat.  The VA Compensation and Pension (C&P) examination performed on 19 June 2003, almost 5 months prior to separation.  The CI reported daily back pain rated 8 out of 10 and that he was unable to lift anything weighing more than 10 pounds.  A SLR was positive at the limit of 70 degrees on the right and negative on the left with no pain until 80 degrees.  The ROM examination is displayed in the chart below.  The motor examination was 5/5.  The DTRs were 2+ and symmetric.  The sensory examination was not documented.  The examiner noted that the CI was able to squat and stand on heels and toes without complaints of pain.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized below.

Thoracolumbar ROM 
(Degrees)

NARSUM ~5.7 Mos. Pre-Sep

VA C&P ~4.7 Mos. Pre-Sep

VA PT ~4.5 Mos. Post-Sep

Flexion (90 Normal) | 35 | Pain at 35 (It is not clear if this is the limit.) | 40% of WNL
Extension (30) | 15 | 30 | WNL
R Lat Flexion (30) | 10 | 15 | 50% of WNL
L Lat Flexion (30) | 10 | 20 | 50% of WNL
R Rotation (30) | -- | 25 (pain at 20) | 90% of WNL
L Rotation (30) | -- | 25 (pain at 20) | 90% of WNL
Combined (240) | N/A | 150 | N/A
§4.71a Rating | PEB 20% | VA 20% | 20%

The Board directs attention to its rating recommendation based on the above evidence.  It noted that the history of the accident provided by the CI was not consistent between examinations.  Also, the objective pathology noted and the ability to squat seen on both the MEB and VA examinations is not consistent with the significant flexion limitation observed.  However, the ROM was consistent between examinations and was, therefore, determined to have probative value by the Board.  In accordance with DoDI 6040.44, the Board is required to recommend a rating utilizing the VASRD in effect at the time of separation.  The Board noted that the current §4.71a VASRD standards for rating the spine were in effect at the time of separation, but that both the PEB and the initial VA determination relied on the older standards which in effect at the times of the respective adjudications.  The PEB used the analogous code 5299-5295 for lumbosacral strain and applied the USAPDA pain policy.  The VA initially coded the condition 5293-5292 for intervertebral disc syndrome and limitation of motion of the lumbar spine and assigned a 20% rating effective 20 June 2003, the expected date of separation, using the applicable spine rules at that time.  The examiner noted the degree at which there was pain with flexion, but did not indicate if that was maximum flexion.  It was also noted that the normal ROM cited by the examiner are not the VASRD standards.  The post-separation VARD, dated 14 November 2003 coded the condition 5243, the updated code for intervertebral disc syndrome, and decreased the rating to 10%, effective the day after the actual date of separation of 8 November 2003, using the VASRD spine rules that were applicable on the date of separation.  The VA later increased the rating to 20% effective 22 March 2004, based on records from that day.  A neurology evaluation on 7 April 2004, 5 months after separation, was normal including gait.  The VA increased the rating to 40% effective 16 November 2004 based on the 8 January 2005 C&P examination.  The VA awarded a 10% rating effective 29 September 2006 based on the 26 March 2007 examination showing a sensory deficit of the left thigh.  The Board also noted that the ROM examinations were inconsistent with other examination findings and significantly lower than earlier ROM examinations.  There was no evidence in the service treatment records of an intervening injury to account for the decreased forward flexion that was reported in the examinations proximate to separation.

The Board first considered a rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The criteria are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  While there was evidence of documentation of physician recommended “rest over the weekend,” it did not meet the criteria for compensation using incapacitation episodes.  The Board considered that the ROM evidence from the MEB and C&P evaluations.  The Board agreed that the limitation in ROM supported 20% disability rating for “thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  The Board considered the codes 5237, lumbosacral strain, 5242, degenerative arthritis of the spine, and 5243, intervertebral disc syndrome.  It determined that all were appropriate options and that none provided a rating advantage over the others.  The Board determined that the code 5243 provided the best clinical description of the unfitting condition and can be used to support a rating due to limitation in motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 20% for the chronic mechanical LBP condition, coded 5243.  The Board noted that the contention by the CI was vague and that the VA later determined there to be a service-connected radiculopathy.  The Board considered if an unfitting lumbar radiculopathy was present at separation.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  Electrodiagnostic testing was negative.  The neurological examinations, performed by the MEB examiner and the VA neurologist and which bracket the date of separation by 5 months prior to and after separation, were normal.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  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 lumbar radiculopathy as an additionally unfitting 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 discussed above, PEB reliance on DoDI 1332.39 and AR 635-40 for rating mechanical LBP was operant in this case and the condition was adjudicated independently of that instruction and regulation by the Board.  In the matter of the mechanical LBP condition and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends that it be rated 20% using the VASRD code 5243.  The single voter for dissent (who recommended no recharacterization) did not elect to submit a minority opinion.  In the matter of the lumbar radiculopathy, the Board unanimously recommends that it cannot be added as an unfitting condition.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Mechanical Low Back Pain | 5243 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121212, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB),

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130019921 (PD201201969)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201969