RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02492
BRANCH OF SERVICE:  Army	BOARD DATE:  20140630
SEPARATION DATE:  20050503

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63D, Turret Mechanic) medically separated for back pain.  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).  Chronic lower back pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain status post L4-S1 lumbar interbody fusion without neurologic abnormality” as unfitting, rated 20%, with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI wrote “due to passage of new laws in 2008.”

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 and no additional conditions are within the DoDI 6040.44 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 20050331 | VA - (>6 Years Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain s/p L4-S1 Fusion w/o Neurologic Abnormality | 5241 | 20% | Lumbosacral Spine Strain w/Degenerative Disc Disease | 5242 | 20% | 20110808
Other x 0 (Not is Scope) | Other x 5 | 20110912
Rating:  20% | Combined:  60%
Derived from VA Rating Decision (VARD) dated 20121018 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

The Board evaluates VA evidence proximate to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of fitness decisions and rating determinations for disability at the time of separation.  DoDI 6040.44 specifies a 12-month interval for special consideration to VA findings.  Post-separation evidence, however, is probative only to the extent that it reasonably reflects the disability at the time of separation from military service.

Low Back Pain Condition.  The CI first received trauma to his low back from a fall in 2001 and again in 2002 while lifting heavy objects.  Radiologic examinations revealed lumbosacral degenerative changes with disc herniation at L4-5 and L5-S1 with mild central canal stenosis (slight pressure upon spinal cord elements).  There was a paucity of source treatment documents in the record file, but summary notes indicated that the CI failed non-operative treatments to include pain medication, chiropractic care, spinal injections and physical therapy (PT).  Secondary to persistent low back pain (LBP) with right-sided radiculopathy, he underwent a spinal fusion with implant on 13 September 2004.  His surgery was uncomplicated and at 2 weeks post-op, his gait was normal and lower extremity pain symptoms were absent.  At the MEB examination (6 weeks prior to separation), the CI reported a low grade (3 of 10 scale) LBP and the inability to wear body armor.  X-rays noted good surgical implant positioning.  His physical examination (PE) was brief and revealed a well-healed back scar and no motor, sensory, or reflex abnormalities in either leg.  There was no comment in regards to a specific back examination, altered gait, or abnormal spinal curvature.  Thoracolumbar range-of-motion (ROM) was decreased.  He denied radicular symptoms.  At the VA Compensation and Pension examination performed over 6 years after service separation, the CI reported near daily, moderate LBP (ache) lasting hours and associated with spasms, weakness and stiffness.  Additionally, he reported “flare-ups” of severe LBP every 1-2 months lasting up to 1-2 days.  The PE revealed normal gait and posture.  ROM was moderately decreased with painful motion and Deluca was positive for pain.  There was no guarding, tenderness, spasm, atrophy or weakness about the lumbar spine.  He was neurologically intact.  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)

PT ~5 Mo. Pre-Sep

VA C&P ~ 6 Years Post-Sep

Flexion (90 Normal) | 45 (40,45,45) | 60
Combined (240) | 200 | 210
Comment | painful motion | painful motion; DeLuca +
§4.71a Rating | 20% | 20%

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA applied similar codes of 5241 (spinal fusion) and 5242 (degenerative arthritis) respectively, which is appropriate to the presenting pathology.  The ROM findings rated by the MEB and VA were similar, each yielding 20% ratings under the VASRD §4.71a general spine formula.  The Board also notes the earliest VA spinal evaluation was 6 years after the date of Service separation.  IAW DoDI 6040.44 and the post-separation time reference, the service treatment record evidence was assigned exclusive probative value with respect to the Board’s recommendations.  There was no evidence of incapacitating episodes to achieve a higher rating under an alternate rating code.  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 lumbar spine 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 LBP 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 20131123, 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 XXXXXXXXXXXXXXX, AR20150002936 (PD201302492)

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

PD-2013-02492