RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02767
BRANCH OF SERVICE:  Army	BOARD DATE:  20141216
SEPARATION DATE:  20070620

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Light Wheeled Vehicle Mechanic) 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).  The back condition, characterized as “low back pain, chronic” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (attention deficit disorder and herpes simplex) judged to meet retention standards.  The Informal PEB adjudicated “chronic low back pain,” rated 10%, citing criteria from the VA 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:  He is now rated at 80% disabled by the VA effective 1/18/2008.  He is paid at the 100% rate because he is unable to secure gainful employment due to my service-connected conditions.  He was discharged from the US Army with a 10% disability rating.  His complete submission is at Exhibit A.

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 20070309 | VA - (2 Mo. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain | 5243 | 10% | Chronic Lumbar Strain | 5237 | 20% | 20070412
Attention Deficit Disorder | Not unfitting | Somatization Disorder, Chronic Pain | 9421 | 10% | 20070409
Herpes simplex | Not unfitting | No VA Placement
Other x 0 (Not in Scope) | Other x 15
Combined:  10% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20070629 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  The goniometric range-of-motion (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 ~ 7 Mo. Pre-Sep
(20061109)

VA C&P ~ 2 Mo. Pre-Sep
(20070412)

Flexion (90 Normal) | 60 | 50
Extension (30) | 20 | 30
R Lat Flexion (30) | 30 (35) | 30
L Lat Flexion (30) | 30 (35) | 30
R Rotation (30) | 30 | 30
L Rotation (30) | 30 | 30
Combined (240) | 200 | 200

Comment

“passive” flexion was 90 degrees
No spasm
Gait normal
Leg raise negative
Normal strength & reflexes

No change after repetition
Painful motion
No spasm.
No signs of intervertebral disc syndrome or radiculopathy

§4.71a Rating | 20% | 20%

According to service treatment records and the MEB narrative summary (NARSUM), the CI developed chronic LBP with leg radiation following a parachute jump.  Magnetic resonance imaging of the lumbar spine on 8 November 2006 demonstrated a broad based right central disc bulge at L5-S1 resulting in narrowing of the right neuroforamen (space between the bony vertebrae through which a spinal nerve courses) with possible impingement on the right L5 and S1 nerve roots.  There were also mild disc bulges at L3-4 and L4-5 with degenerative joint disease but without neural impingement.  The MEB examination on 31 October 2006 (DD form 2808) recorded the presence of tenderness, normal lower extremity strength and sensation, a negative straight leg raise for signs of radiculopathy and a normal gait.  The MEB physical therapy ROM examination on 9 November 2006 is recorded in the chart.  The passive thoracolumbar flexion was 90 degrees however active flexion was limited to 60 degrees by pain.  The 9 February 2007 MEB NARSUM cited the physical therapy ROM examination, and recorded the presence of tenderness without spasm.  Straight leg raising was negative for signs of radiculopathy and lower extremity strength and reflexes were normal.  At the VA Compensation and Pension (C&P) examination on 12 April 2007, 2 months prior to separation, the CI reported back pain radiating to the right leg.  On examination, there was no tenderness or muscle spasm noted.  There was painful motion and the ROM is recorded in the chart.  There was no decrease in ROM after repetition.  The examiner noted there were no signs of intervertebral disc syndrome with chronic or permanent nerve root involvement.  The examiner diagnosed chronic lumbar strain.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP 10%, coded 5243 (intervertebral disc syndrome) noting motion limited by pain, normal gait, and absence of objective neurologic findings.  The VA rated the chronic lumbar strain (claimed as low back herniated disc and chronic pain) 20% coded 5237 (lumbosacral strain) citing the limitation of motion at the VA C&P examination.  Both the MEB physical therapy ROM and the pre-separation VA C&P examination ROM supported a 20% rating in accordance with the VASRD General Rating Formula for Diseases and Injuries of the Spine based on limitation of thoracolumbar ROM.  The Board also considered a rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The criteria are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  
No documented physician directed bed rest was evidence in the service treatment records or at the time of the C&P examination.  The Board concluded the evidence did not support a higher rating using this alternate formula providing no additional benefit to the CI.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic low back pain condition coded 5237.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were herpes simplex infection and attention deficit disorder.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  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.

Herpes simplex.  The MEB examination on 31 October 2006 noted a history of herpes simplex since 2001, prior to entering military service.  The MEB NARSUM noted the CI was taking medication to prevent recurrences.  There was no performance based evidence from the service treatment record that this condition significantly interfered with satisfactory duty performance.

Attention deficit disorder.  On the Post-Deployment Health Assessment completed by the CI on 7 March 2006, he checked “No” in response to questions regarding whether he had seen anyone wounded, killed or dead, engaged in direct combat, or feeling in great danger of being killed during the deployment.  The CI also checked “No” to questions screening for symptoms of depression and posttraumatic stress disorder (PTSD).  According to the MEB examination (DD Form 2807) on 31 October 2006, the CI was told he had attention deficit disorder (ADHD).  The commander’s statement noted that despite his back pain condition, the CI remained highly motivated and was a solid performer despite his diminished capacities.  The commander made no mention of impairment due to ADHD or other mental health (MH) condition.  The MEB NARSUM on 9 February 2007 noted the ADHD was not disqualifying for continued military service.  The VA C&P mental conditions examination on 9 April 2007, noted chronic LBP, poor sleep, and episodes of anger and social isolation.  The CI denied concentration problems, thoughts or suicide, or symptoms of posttraumatic stress disorder.  On examination there was no abnormality of mood or affect.  Speech, thought processes, concentration and memory were normal.  Insight and judgment were intact.  The examiner diagnosed somatization disorder, chronic pain type.  The examiner concluded there was occasional impairment in social and occupational performance due to back pain and his inability to lift and perform vehicular mechanical work (for which the CI was found unfit and received a disability rating).  A Global Assessment of Functioning (GAF) of 78 was assigned denoting transient symptoms with slight impairment.  A GAF of 84 was noted for the prior year (denoting absent or minimal symptoms).  No MH condition was profiled, implicated in the commander’s statement, or judged to fail retention standards.  The condition was reviewed considered by the Board.  There was no indication from the record that the 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 the any of the contended conditions, and, therefore, no additional disability ratings can be 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.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20% coded 5237 IAW VASRD §4.71a.  In the matter of the contended attention deficit disorder and herpes simplex infection 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Low Back Pain | 5237 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131219, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX 
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 XXXXXXXXXXXXXXXXXX, AR20150008389 (PD201302767)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl			     XXXXXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
				        (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-02767