RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02192
BRANCH OF SERVICE:  Army	BOARD DATE:  20140627
SEPARATION DATE:  20050616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (35M/Radar Repairer) medically separated for chronic low back pain (LBP).  The low back 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).  The low back condition, characterized as “chronic mechanical low back pain exacerbated by a fall,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition for PEB adjudication.  The Informal PEB adjudicated chronic LBP as unfitting, rated 10%.  The remaining condition, testicular hypofunction was determined to be not unfitting, not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Because everything was not included during MEB.”  The CI attached a two page statement to his application, which was reviewed and considered by the Board.

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 low back condition is addressed below.  The requested hypogonadism condition, which was medically acceptable and determined to be not unfitting by the PEB, is also addressed.  The requested “anxiety disorder known now to be PTSD” was not identified by the PEB and thus is not within the DoDI 6040.44 defined purview of the Board.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20050427	VA – (5 Days Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Intermittent Thoracolumbar Paraspinal Tendonitis w/o Neurovascular Association	5024	10%	20050611	
Testicular Hypofunction	Not Unfitting	Right Hypogonadism with associative bilateral gynecomastia	7628	10%	20050611	
Other x 0 (Not in Scope)	Other x 5		
Rating:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20051028 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertion that certain improprieties may have occurred while the Army was processing his case and the contention that other conditions should have been included in the Disability Evaluation System process.  It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in regard to suspected improprieties. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB fitness and rating determinations, based on severity at the time of separation.  Furthermore, while other conditions may have been present, compensation can only be offered for those conditions that cut short a member’s career and then only to the degree of severity present at the time of separation.  The Department of Veterans Affairs; however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Low Back Pain (LBP).  The CI has had a long history of LBP.  In 2002, he was diagnosed with lumbago.  Magnetic resonance imaging showed minimal posterior disc bulges, without evidence of neural impingement.  In April 2003, the CI was injured when he fell into an eight foot bunker.  After the fall, he complained of LBP.  He was treated with rest, medication and physical therapy.  In spite of treatment, his symptoms persisted and an MEB was initiated.  The MEB narrative summary was dated 15 April 2005.  Physical examination (PE) of the lower back revealed some paravertebral muscle tenderness, but no spasm.  There was no evidence of abnormal spinal curvature.  On range-of-motion (ROM), he was able to flex forward to his knees.  Otherwise, there was no evidence of limited ROM.  Five days prior to separation, the CI had a VA Compensation and Pension (C&P) exam.  PE of the back revealed no spasm or tenderness.  Straight leg raise was negative bilaterally.  There was no evidence of radiculopathy or intervertebral disc syndrome.  ROM was measured and is summarized below. 

Thoracolumbar ROM
(Degrees)	VA C&P ~ 5 days Pre-Sep
(20050611)	
Flexion (90 Normal)	85	
Extension (30)	20	
R Lat Flexion (30)	25	
L Lat Flexion (30)	25	
R Rotation (30)	25	
L Rotation (30)	25	
Combined (240)	205	
Comment	Pain with motion	
§4.71a Rating	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The Army PEB and the VA chose different coding options for the back condition, but both assigned a disability rating of 10%.  The Board considered the back examinations described above.  The June 2005 C&P exam was performed just 5 days prior to separation from service and therefore had significant probative value.  At that exam, thoracolumbar forward flexion was 85 degrees and combined thoracolumbar ROM was 205 degrees.  IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, a 10% rating is warranted when forward flexion is greater than 60 degrees but not greater than 85 degrees.  A 10% rating is also warranted when combined thoracolumbar ROM is greater than 120 degrees but not greater than 235 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 10% was appropriate.  The Board tried to find a path to a higher rating using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 10%.

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.  However, 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 time of separation.  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 LBP condition.

Testicular hypofunction, Primary hypogonadism.  This condition was adjudicated by the PEB as “not unfitting, not rated.”  The Board’s main charge is to assess the fairness of the PEB’s determination that testicular hypofunction was 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.  Testicular hypofunction was not profiled, implicated in the commander’s statement or judged to fail retention standards.  It was reviewed and considered by the Board.  There was no performance based evidence that this 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 for this condition.  Therefore, no additional disability rating is 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the testicular hypofunction, the Board unanimously recommends no change in the PEB determination 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 20131105, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXX, AR20150002591 (PD201302192)

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