RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02466
BRANCH OF SERVICE: Army	BOARD DATE:  20140820
SEPARATION DATE:  20080706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantryman) medically separated for a back problem.  The 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 back condition, characterized as “chronic low back pain (LBP),” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions as meeting retention standards.  The Informal PEB adjudicated “lumbosacral strain” as unfitting, rated 10% with application of the VA Schedule for Rating Disabilities (VASRD).  The PEB further adjudicated the three other MEB conditions as not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “My award does not match my 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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition is addressed below.  The CI’s contention is thought to indicate a mismatch between the MEB and PEB. Accordingly, the right shoulder, right ankle and deviated septum are considered to be within the DoDI 6040.44 defined purview of the Board for review.  No other conditions are within the defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20080307	VA - (1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	10%	Degenerative Arthritis… Spine	5242	10%	20080818	
Chronic.. R Shoulder   	Not Unfitting	R Rotator Cuff Strain	5299-5203	10%	20080818	
Chronic … Ankle Pain	Not Unfitting	R Ankle Condition	5271	NSC	20080818	
Deviated Septum	Not Unfitting	S/P Septoplasty, Traumatic    	6502	0%	20080818	
Other x 0 (Not in Scope)	Other x 1	20080818	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20080930 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lumbosacral Strain.  The CI was tossed about in his vehicle following an explosion while deployed in March 2006.  He was able to complete the deployment, but had light duties.  X-rays of the lower back on 7 February 2007 were significant for early degenerative changes at L5-S1.  He was managed conservatively with duty limitations and medication without resolution of his pain.  A magnetic resonance imaging of the lumbar spine on 18 May 2007 was normal other than a possible developmental variant.  He continued both conservative management including physical and chiropractic therapy and also had injections, but remained without adequate improvement to meet full duty requirements and was referred for MEB.  The CI was issued an L3 profile on 21 November 2007 for his back condition.  No other conditions were listed.  At the MEB examination on 21 November 2007, the CI reported right sided LBP.  The examiner noted reduced range-of-motion (ROM), charted below, as well as tenderness and spasm of the lower paraspinal muscles.  The commander’s statement was dated 10 December 2007.  Only the back condition was cited as limiting duty.  The CI was evaluated in orthopedics on 16 January 2008.  No radicular symptoms were present.  His gait and posture were normal.  Spasm was absent.  The ROM was normal, but elicited pain.  The motor and reflex examinations were normal, but decreased sensation to light touch of the lateral thigh and calf was noted (side not specified).  The narrative summary (NARSUM) was dated 7 February 2008, 5 months prior to separation.  The CI reported daily pain with exacerbations every few weeks.  He continued to take medications as needed and to do the stretching exercises recommended by physical therapy.  He denied any sensory changes, weakness, or incontinence of bowel or bladder.  On examination, the CI had no difficulty sitting, standing, or ambulating.  Three maneuvers not expected to cause pain in his condition did so.  At the VA Compensation and Pension examination performed a month after separation, the CI reported constant right sided LBP which did not cause any functional impairment.  No incapacitation had occurred.  On examination, the gait and posture were normal.  Spasm was absent, but tenderness was noted along the right paraspinal muscles.  Provocative testing of the spine was negative.  The sensory, motor, and reflex examinations were normal.  Degenerative arthritis was present on X-ray.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~5 Mo. Pre-Sep	VA C&P ~1 Mo. Post-Sep	
Flexion (90 Normal)	70	85	
Combined (240)	215	160	
Comment	Limited by pain	DeLuca negative	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition at 10%, but coded it 5237 (lumbosacral strain) and 5242 (degenerative arthritis), respectively.  This has no impact on the rating assigned.  The limitation in ROM and painful motion warrant no more than a 10% rating.  Absent spasm, incapacitation, or abnormal gait or contour, the Board found no route to a rating higher than the 10% adjudicated by both the PEB and VA.  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 determined that the CI intended it to consider the not unfitting conditions of right shoulder pain, right ankle pain and nasal septal deviation.  The Board’s main charge is to assess the fairness of the PEB’s determination that these conditions 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.  The CI noted in the NARSUM that neither the shoulder or ankle condition was “significantly or permanently limiting.”  The NARSUM also noted that he was doing well after surgery for the deviated septum.  None of the conditions were profiled or implicated in the commander’s statement.  None were judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any of these conditions 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 the any of the 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 right shoulder, right ankle, and deviated septum 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 20131115, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150001092 (PD201302466)

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