RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1300034
BRANCH OF SERVICE:  Army	BOARD DATE:  20130606
SEPARATION DATE:  20031123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve SPC/E-4 (91R/Food Inspection Specialist) medically separated for a chronic low back condition.  Her back pain began in 1992 when she fell into a foxhole during basic training.  The condition was treated non-surgically but could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty or physical fitness standards, so she was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, identified by the MEB as “chronic mechanical low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded obesity, which was judged to meet retention standards.  The PEB adjudicated “chronic low back pain…” as unfitting and rated 10%, referencing the Department of Defense Instruction (DoDI) 1332.39.  The obesity condition was determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am unable to stand for long periods of time.  I am unable to bend down or lift heavy objects.  I have constant pain in my lower back that never goes away.”

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; 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 20030714	VA - (16 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Chronic Low Back Strain	5237	10%*	20050314	
Obesity	Not Unfitting	No VA Entry	
No Additional MEB/PEB Entries	Other x1	19960807	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050509 (most proximate to date of separation [DOS])
* Original rating for low back strain was 0%, upgraded to 10% by VARD closest to separation

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which the service-incurred condition continues to burden her.  It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs (DVA).  The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Low Back Condition.  The CI complained of low back pain (LBP) that began after an injury she suffered when she fell backwards into a foxhole during basic training in 1992.  The narrative summary (NARSUM) documents that a line of duty determination for that injury was completed prior to her MEB.  She was called to active duty in January 2003 and had a permanent profile for her LBP completed in March 2003.  She was treated by physical therapy, occasionally used non-steroidal anti-inflammatory drugs (NSAIDs).  She underwent electromyographic testing in 1995 (to evaluate complaints of possible radiculopathy) that was normal.  There is an entry in the service treatment record (STR) that documents a normal forward flexion of the lumbosacral spine performed a month prior to the NARSUM (7 months prior to separation).  All imaging studies were normal with one completed 7 months prior to separation.  The NARSUM completed 6 months prior to separation documented that the CI could not do sit-ups or pass physical fitness testing due to LBP.  The pain in her lower back usually did not hurt but running, flutter kicks or picking up weights would make her back hurt.  She was not bothered by standing or sitting.  Her left leg had some pain and occasional numbness years ago but that had resolved.  Physical exam findings are summarized in the chart below.  At the VA Compensation and Pension (C&P) exam performed 16 months after separation, the CI reported she had recurrent pain off and on since her injury in 1992 but was worse during the past year.  She used a muscle relaxer and NSAIDs which provided moderate relief.  Physical exam findings are summarized in the chart below.  There had been no incapacitating episodes during the past year.

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)	NARSUM 6 Mos. Pre-Sep	VA C&P 16 Mos. Post-Sep	
Flexion (90° Normal)	30°	75°	
Combined (240°)	-	225°	
Comment	Pos. axial loading (Waddell's); good heel walk & good toe walk; Neg straight leg raise bilaterally; good reflexes in all extremities; Slight tenderness to palpation lumbar spine	Pos. excess kyphosis; no palpable spasm or tenderness; Pos pain at extremes of ROM but no objective pain behavior; normal deep tendon reflexes, strength and sensory function; Neg sitting straight leg raise bilaterally; 3/5 Waddell’s signs; repetitive use produces increased pain but no change in functional status	
§4.71a Rating	40%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the CI’s LBP by applying the analogous Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5299-5295, lumbosacral strain, and rating it 10% citing characteristic pain on motion IAW DODI 1332.39.  The VA applied VASRD code 5237, lumbosacral or cervical strain, and also rated it based on a forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, also stating that the current evaluation takes into consideration functional loss due to pain, weakened movement, and incoordination.  The general rating formula for diseases and injuries of the spine is used to rate either VASRD code 5237 or 5295.  The ROM measurement in the MEB exam correlates with a 40% rating under that rating formula, while the ROM measurement in the C&P exam correlates with a 10% rating.  It is obvious that there is a clear disparity between these examinations with very significant implications regarding the Board's rating recommendation.  In assigning probative value to these conflicting examinations, the Board majority notes that the C&P exam measurements are most consistent with all other collateral physical findings, the normal diagnostic testing results and the clinical pathology documented in the STRs (all consistent with essentially normal ROMs).  The board majority feels there is not a reasonable accounting for the isolated NARSUM ROM measurement that would lead to a 40% rating and noted there was a normal lumbosacral spine ROM measurement documented a month prior to the NARSUM.  Although the C&P exam was 4 months outside the usual 12 month interval for special consideration, based on all evidence and associated conclusions just elaborated, the Board is assigning preponderant probative value to the C&P evaluation for its rating recommendation.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes which would provide for additional or higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP 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.  As discussed above, PEB reliance on DoDI 1332.39 for rating chronic LBP was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board, by a vote of 2:1, recommends no change in the PEB adjudication.  The single dissenting voter, who recommended a 40% rating, coded 5237, elected to not submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5299-5295	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120719, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130016795 (PD201300034)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA