RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01582
BRANCH OF SERVICE:  Army	BOARD DATE:  20141231
SEPARATION DATE:  20040617

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army National Guard E-5 (Infantry) medically separated for back pain.  The CI’s back pain did not improve adequately to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded to the Physical Evaluation Board (PEB) “degenerative disc disease” as not meeting retention standards IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic subjective back pain, due to lumbar degenerative disc disease, without neurologic abnormality” as unfitting, rated 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Because the back surgery has totally disabled me.  I have not been able to work.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20040415	VA – (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain …w/o Neurologic Abnormality	5299-5237	10%	DDD Thoracolumbar Spine	5237	20%	20040813	
Other x 0 (Not In Scope)	Combined:  30%	
Combined:  10%		
Derived from VA Rating Decision (VARD) dated 20040927 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Back Pain.  The CI has had back pain since 2001.  In February 2003, magnetic resonance imaging revealed multilevel degenerative changes, with borderline spinal canal stenosis (narrowing), and a small L5-S1 right disc protrusion.  On 4 March 2003, the CI was seen by neurosurgery.  At that time, the chief complaint was right buttock pain with no pain down into the legs.  Lumbar spine range-of-motion (ROM) was full in all planes.  Gait was normal.  It was determined that he was not a surgical candidate.  On 27 October 2003, the CI was seen by orthopedics, and was found fit for deployment.  On 9 March 2004, he was again evaluated by orthopedics.  The CI reported back pain, and right hip/thigh pain.  He could tolerate doing his civilian job, but could not tolerate laying on something flat and hard.  He also could not tolerate wearing body armor.  Due to the chronic, persistent nature of his back pain, an MEB was initiated.  The MEB narrative summary was dictated on 9 March 2004.  Neurological exam was normal.  Patellar (knee jerk) and Achilles (ankle jerk) reflexes were normal bilaterally.  ROM was measured by physical therapy, and is summarized in the chart below.

The CI separated on 17 June 2004.  On 13 August 2004, 8 weeks later, he had a VA Compensation and Pension exam.  He reported constant back pain, with radiation to both legs.  He denied any incapacitating episodes over the previous 12 months, and he denied any numbness or weakness.  Physical examination of the back revealed some tenderness to palpation in the midline, at multiple levels.  Thoracolumbar ROM was measured, and is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~ 14 weeks Pre-Sep
(20040309)	VA C&P ~ 8 weeks Post-Sep
(20040813)	
Flexion (90 Normal)	70	60	
Combined (240)	(not recorded)	170	
§4.71a Rating	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The CI’s back condition got worse during the period from March 2004 to August 2004.  His forward flexion of the thoracolumbar spine went from 70 degrees to 60 degrees.  The Board could not find a ROM measurement from the actual DOS.  The Board determined that it was more likely than not, that on the DOS, given the CI’s overall disability picture; thoracolumbar forward flexion was greater than 60 degrees but not greater than 85 degrees.  IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, a 10% rating is warranted when thoracolumbar forward flexion is greater than 60 degrees but not greater than 85 degrees.  Therefore, a 10% disability rating was appropriate for the back pain condition at the time of DOS.  The Board tried to find a path to a higher rating for the back condition.  However, there was insufficient evidence of a significantly disabling back condition that would justify a higher rating.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had neurological symptoms, but there was no performance-based evidence that the neurological condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the DOS.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the 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 chronic back pain 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130924, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150007609 (PD201301582)

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		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA