RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1302063
BRANCH OF SERVICE:  Army	BOARD DATE:  20140402
SEPARATION DATE:  20060301

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (31B/Military Police), medically separated for a low back condition.  The CI suffered from long standing low back pain (LBP) of idiopathic origin since 1993.  Courses of physical therapy (PT), duty restrictions and conservative treatment failed to adequately rehabilitate this condition 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 CI was treated for anger problems in approximately 1999.  He was psychiatrically evaluated for the MEB in conjunction with his non-mental health (MH) disability evaluation and found to have no MH diagnosis.  The MEB forwarded “chronic low back pain with lumbar spondylolysis” to the Physical Evaluation Board (PEB), IAW AR 40-501.  The MEB also forwarded eight non-MH conditions identified in the rating chart below as meeting retention standards.  The PEB adjudicated “chronic non-radiating episodic low back pain” as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to meet retention standards and therefore to be not unfitting and not ratable.   The CI made no appeals and was medically separated 

CI CONTENTION:  “ I am in pain everyday.  My activities are limited and sometimes I can hardly move.  My mobility is limited and it is painful and difficult to get up from a sitting or lying position.”

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.  In addition, the CI was notified by the Army that his case may eligible for review of the military disability evaluation of his MH condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed during that process.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The rating for the unfitting chronic non-radiating low back condition is addressed below.  In addition, in accordance with Secretary of Defense directive for a comprehensive review of MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting MH diagnoses in accordance with the VASRD §4.129 and §4.130.  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 20051130 | VA -  (7 Days Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Non-Radiating Episodic Low Back Pain | 5237 | 0% | Chronic Low Back Pain With Spondylolysis | 5240 | NSC | 20060308
Left Wrist Tendonitis | Not Unfitting | Left Wrist Tendonitis | 5024 | NSC | 20060308
Bilateral Shoulder | Not Unfitting | Bilateral Shoulder | 5201 | NSC | 20060308
Bilateral Elbow Pain | Not Unfitting | Bilateral Elbow Pain | 5206 | NSC | 20060308
Bilateral Knee O-S | Not Unfitting | Bilateral Knee O-S | 5099-5015 | NSC | 20060308
Bilateral Plantar Fasciitis | Not Unfitting | Bilateral Plantar Fasciitis | 5099-5020 | NSC | 20060308
Left Ankle Instability | Not Unfitting | Left Ankle Fx residuals | 5271 | NSC | 20060308
Bilateral Pes Planus | Not Unfitting | Bilateral Pes Planus | 5276 | NSC | 20060308
GERD | Not Unfitting | GERD | 7346 | 10% | 20060308
No Additional MEB/PEB Entries | Other x 10 | 20060308
Combined:  0% | Combined:  60%
VARD 20060914 (most proximate to Date of Separation); Neither the PEB nor the VA adjudicated a MH condition

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Chronic Non Radiating Low Back Condition.  The CI was first seen for LBP after a motor vehicle accident in 1994.  He apparently did well with conservative management, but was noted at some point (records not in evidence) to have spondylolisthesis (a slippage of on vertebral body over another).  He had recurrent pain in 1997 and was treated with physical therapy (PT) and restriction in activity (he was a bodybuilder), but no duty limitations until he was issued a permanent L2 profile in 1999.  In 2004, he reported that he was no longer able to run or ruck.  X-rays performed on 8 April 2004 were significant for bilateral spondylosis (a defect of the vertebrae) of L5, but without spondylolisthesis.  Spina bifida occulta (a congenital malformation of the spine) was noted at S1.  Repeat X-rays on 28 September 2005 showed the spina bifida occulta as well as a small spur at L3 and L4 consistent with degenerative changes.  At the MEB examination on 8 September 2005, the CI reported chronic LBP.  The MEB physical examiner noted full range-of-motion (ROM), no radicular signs (indicative of nerve root irritation) and no tenderness or spasm of the paraspinal muscles.  The orthopedic addendum to the narrative summary (NARSUM) dated 28 September 2005 noted that the pain began in 1993 after advanced infantry training.  He had been placed in administrative positions and had no impairment in these jobs.  He was noted to have full ROM of the cervical and thoracic spine and a normal neurological examination.  The lumbar spine was not specifically addressed.  His pain was noted to be progressive and the LBP (spondylosis) condition was determined to not meet retention standards.  The General NARSUM dated 13 October 2005, 4 months prior to separation, noted the chronic LBP and a leg length discrepancy treated with a lift starting in 1995.  It also noted that the CI was entered into the DES process on 12 September 2005.  He was found to have a normal neurological examination and normal muscle bulk and tone.  The ROM of the cervical, thoracic and lumbar spine was normal; painful motion was not documented.  At the VA Compensation and Pension exam performed 7 days after separation, the CI reported that he had no limitations in the activities of daily living or any incapacitation.  It had caused him to lose work one time.  On examination, his posture and gait were normal.  Tenderness, spasm and radiation of pain were absent.  Signs of radicular irritation were absent, the ROM normal and DeLuca criteria negative.  Painful motion was not documented.  Signs of intervertebral disc syndrome were not present.  Follow up X-rays performed on 8 March 2006 were normal.  The examiner noted that there was no pathology present which would support a diagnosis.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the back condition 5237 (lumbosacral strain) and rated it at 0%.  The VA coded it 5240 (ankylosing spondylitis), but assigned no rating as there was no condition present for service-connection.  The Board observed that while there was chronic pain and radiographic changes on some X-rays, there was no documented limitation in motion, painful motion, radiation of pain or incapacitation (other than one time by the VA.)  There are no findings to support a higher rating than the 0% adjudicated by the PEB.  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.  There was an implied contention for a MH condition.  The Board’s main charge is to assess the fairness of the PEB’s implied determination that no unfitting mental health condition was present.  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.  No MH condition was profiled or implicated in the commander’s statement.  None was judged to fail retention standards.  The MEB psychiatrist noted that no MH diagnosis was present at the time of the examination.  The evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that a MH 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 the addition of an unfitting mental health condition at separation.  Accordingly, no additional disability rating can be supported.  The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

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 implied contended mental health condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130920, 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, AR20140013861 (PD201302063)

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
						         (Army Review Boards)