RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301195
BRANCH OF SERVICE:  Army	BOARD DATE:  20140326
SEPARATION DATE:  20060131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (45B/Small Arms Repair) medically separated for chronic back pain.  The CI has had low back pain (LBP) since 2004.  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 underwent a Medical Evaluation Board (MEB).  The back pain condition was found medically unacceptable and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Three other conditions were found medically acceptable.  The PEB found the “chronic subjective back pain, without neurologic abnormality” unfitting and rated it 10%.  The other three conditions were found to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Tendonitis and arthritis found right ankle.  I do have a herniated disc, between L5-S1.  The pain has gone [sic] worst.  It affects me physically and emotionally.  Arthritis found at lower back area.  I am not that active person I used to be.  Can’t jump, every time I pick up something more than 25 lbs or 50 lbs hurts my lower back.  The pain doesn’t go away that easily.  Can’t run like I used to.  It affects everyday life activities.  Stopped a possibility to retire later on.  I served for approximately 7 years and 5 months.  It doesn’t seem like this pain will not go away. [sic]  It seems like it gets worse every year.”

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 pain condition is addressed below.  The right ankle tendonitis and depression are also addressed below.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Army PEB – dated 20051103 | VA – (~5 mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Back Pain | 5299-5237 | 10% | Degenerative Disc Disease | 5243 | 10% | 20050825
Right Ankle Tendonitis | Not Unfitting | Tendonitis, Right Ankle | 5024-5271 | 0% | 20050825
Chronic  Sinusitis | Not Unfitting | Sinusitis | 6599-6513 | 0% | 20050825
Depression | Not Unfitting | Depression | 9434 | 30% | 20060429
No Additional MEB/PEB Entries | Other x 6 | 20050825
Combined:  10% | Combined:  40%
    Derived from VA Rating Decisions dated 20060215 and 20060710

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him and the significant impact they have had on his quality of life.  It is noted for the record that the Board is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions.  That role and authority is granted to the Department of Veterans Affairs (DVA).  The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While the DES considers all of the CI's medical conditions, 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 DVA, however, is empowered to compensate for 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 a history of chronic LBP.  Magnetic resonance imaging showed a broad posterior disc bulge with annular tear in the L5-S1 area.  He had been treated with multiple non-operative modalities including physical therapy and steroid injections.  The LBP was refractory to treatment and an MEB was initiated.  On 25 August 2005, 5 months prior to separation, the CI had a VA Compensation and Pension (C&P) exam.  He complained of daily left-sided back pain, which radiated to the left leg.  His gait was normal and no ambulatory aids were utilized.  On physical exam of the back, the lumbar spine was normal in appearance.  There was no muscle spasm and no tenderness to palpation.  Muscle strength was normal and straight leg raise was negative.  Heel-to-toe walking was normal.  Lumbar range-of-motion (ROM) was measured and is summarized in the chart below.

The MEB narrative summary (NARSUM) dictated on 14 October 2005.  The lumbar ROM noted in the NARSUM was: flexion 90 degrees, extension 30 degrees, rotation 20 degrees (bilateral) and lateral bending 20 degrees (bilateral).  This gives a combined thoracolumbar ROM of 200 degrees.  The ROM measurements which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)

VA C&P ~ 5 mos. Pre-Sep
(20050825)

NARSUM ~ 3.5 mos. Pre-Sep
(20051014)

Flexion (90 Normal) | 90 | 90
Combined (240) | 220 | 200
§4.71a Rating | 10% | 10%

The Board directs attention to its rating recommendation.  The PEB and the VA chose different coding options for the LBP condition, but both assigned a rating of 10%.  At the August 2005 C&P exam, the CI’s combined thoracolumbar ROM was 220 degrees.  The ROM listed in the NARSUM gave a combined thoracolumbar ROM of 200 degrees.  IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, a 10% rating is 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 clearly had radicular symptoms.  However, there was no performance-based evidence that the radicular condition impacted his military duties in any way.  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.

Other PEB Conditions.  Right ankle tendonitis and depression were both 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 these two 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 ankle tendonitis and depression were not specifically profiled, implicated in the commander’s statement or judged to fail retention standards.  They were reviewed by the action officer and considered by the Board.  There was no performance-based evidence from the record that either 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 these two conditions.  Therefore, 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right ankle tendonitis and depression, the Board unanimously recommends no change from 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 20130829, 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 XXXXXXXXXXXXXXXXXX, AR20140019333 (PD201301195)

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

PD1301195