RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01857
BRANCH OF SERVICE:  Army	BOARD DATE:  20150318
SEPARATION DATE:  20040218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Power-Generator Equipment Repairer and Track Vehicle Mechanic) medically separated for back condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Chronic lower back pain, characterized as medically unacceptable, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded hypertension and seasonal allergic rhinitis conditions as medically acceptable and existed prior to service (EPTS) conditions.  The Informal PEB adjudicated chronic low back pain as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I do not believe that I was given a fair assessment by my Physical Evaluation Board (PEB)”

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 20040109	VA* - (~5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	20%	DDD, Lumbosacral Spine	5243	10%**	20040723	
Hypertension	Not Unfitting	Hypertension	7101	NSC	20040723	
Seasonal Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	NSC	20040723	
Other x 0 (Not in Scope)	Other x 4	
Combined:  20%	Combined:  30%	
*Derived from VA Rating Decision (VARD) dated 20040913 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The first record in evidence for the back condition was an X-ray report dated 2 August 2002, which showed degenerative disc disease (DDD) of the lumbosacral spine.  Two months later, a primary care physician (civilian) noted ongoing back pain thought to be secondary to a herniated disc.  The examiner noted that the CI’s military duties should be limited.  Nonetheless, the CI was activated on 15 March 2003 and deployed.  He aggravated his back pain in-theater and was returned to his home station early.  An X-ray on 23 September 2003 showed degenerative joint disease (DJD) of the lumbosacral spine.  Magnetic resonance imaging on 30 October 2003 showed a herniated disc at L4-5 with multi-level DDD, DJD, and spinal stenosis.  During the period after re-deployment, the CI had been treated with medications, physical and chiropractic therapy, and duty restrictions without resolution of his pain.  He was entered into the MEB process and referred for neurosurgical evaluation.  At the MEB narrative summary examination dated 25 October 2003, approximately 4 months prior to separation, the CI reported low back pain since he injured himself on duty in 1993.  On examination, the gait and neurological examination were normal.  Flexion was “diminished,” but the range-of-motion (ROM) was otherwise normal.  The PEB noted that flexion was 60 degrees in the narrative (8b).  Side bending to the left was painful.  He was tender to palpation over L4-5 and the left pelvis (sacroiliac joint).  The neurosurgical evaluation was accomplished on 16 December 2003.  The CI reported occasional abnormal sensations (paresthesia), but denied major radicular symptoms or bowel/bladder incontinence.  On examination, he had a normal neurological examination and atrophy was absent.  Surgery was not recommended.  At the VA Compensation and Pension (C&P) examination dated 21 June 2004, approximately 4 months after separation, the CI reported pain since 1993, but denied incapacitation.  He reported unlimited walking at his own pace if the ground was not uneven.  The neurological examination was normal.  Neither gait nor posture was recorded.  Para-lumbar spasm was present.  Atrophy was absent.  The ROM showed flexion reduced 5 degrees and extension reduced 10 degrees, but was otherwise normal and without further decrease with repetition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 20% and used the code 5243 (intervertebral disc syndrome).  The VA, using the C&P examination, rated the back at 10% also using the 5243 code.  The ROM cited by the PEB supports a 20% rating.  The VA C&P measurements bracket the DOS, but only support a 10% rating.  The PEB rating is utilized IAW VASRD §4.7 (higher of two ratings) and, regardless, a rating lower than that of the PEB is not recommended by the Board.  The Board found no route to a higher rating.  The neurological examination was consistently noted to be normal and evidence does not support the presence of an unfitting radiculopathy at separation.  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 back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hypertension and seasonal allergic rhinitis were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Neither condition was profiled, implicated in the commander’s statement, or judged to fail retention standards.  Both were determined to be EPTS.  Both were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that either condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination either contended conditions and so no additional disability ratings are recommended.

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 back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension and seasonal allergic rhinitis conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20130926, 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, AR20150011063 (PD201301857)

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