RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	 	CASE: PD-2013-01843
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20141210
SEPARATION DATE:  20040305

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Multi-Channel Transmission Systems Operator/Maintainer) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the chronic LBP condition as unfitting, rated 20% with presumed application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have had surgery on my lower back since then by the VA and it has limited my quality of life as well as making it a taxing effort to exercise to lose weight.”

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 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 20040213	VA* - (Exam ~ 4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	20%	Degenerative Disk Disease	5237	20%	20040526	
Other x 0 (Not In Scope)	Other x 4	
Combined:  20%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20040702 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Low Back Condition.  Review of the service treatment record indicated the CI experienced acute onset of LBP after doing heavy lifting in June 2003 while deployed to Iraq and required aeromedical evacuation from the theater.  Imaging studies found degenerative disc disease and herniation at L5-S1.  A surgical evaluation in September 2003 indicated the absence of neurologic symptoms or findings and concluded that surgery was not a good option for the condition.  The MEB separation examiner, approximately 3 months prior to separation, reported decreased (but unmeasured) range-of-motion (ROM) and painful motion.  The narrative summary on 12 January 2004 (approximately 2 months prior to separation) reported the absence of pain radiating to the lower extremities.  Physical examination showed normal neurologic findings.  ROM on the same day by physical therapy (PT) showed flexion of 50 degrees (normal to 90 degrees) and combined ROM of 175 degrees (normal 240 degrees) after three repetitions in all planes.  At the VA Compensation and Pension exam performed approximately 3 months after separation, the CI complained of back tightness and diminished ROM.  Radiating symptoms were denied, and there were no incapacitating episodes in the previous year.  Examination observed a normal gait and “full active range of motion.”  Some limitation of left side bending was noted, but ROM was not measured.  There was no guarding, spasm or tenderness.

The Board directed attention to its rating recommendation based on the above evidence.  It was agreed that the PEB’s 20% rating under the 5237 code (lumbosacral strain) was justified for forward flexion of 50 degrees reported by the PT examiner (i.e. forward flexion greater than 30 degrees but not greater than 60 degrees).  There was no evidence of favorable ankylosis or of flexion less than 30 degrees to support the next higher rating.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the minimal rating criteria under that formula.  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 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.  In the matter of the chronic low 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 20131010, 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, AR20150007619 (PD201301843)

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