RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01471
BRANCH OF SERVICE:  Army	BOARD DATE:  20141118
SEPARATION DATE:  20090830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (63A/Abrams Tank Systems Maintenance) medically separated for a back condition.  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 “chronic thoracic back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Three other conditions (migraine, hypertension and insomnia) were also submitted by the MEB.  The Informal PEB adjudicated “lumbosacral strain” as unfitting, rated at 20%, citing criteria of the Veterans Affairs 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:  “My service related disability has not improved despite months of physical therapy and numerous medications.  It only continues to get worse.”

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 20090622	VA - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	20%	Lumbar Strain	5237	20%	20090731	
Other x3 (Not In Scope)	Other x3	
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20091104 (most proximate to date of separation)

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using VASRD standards, based on ratable severity at the time of separation.  Additionally, 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 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.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

Lumbosacral Strain Condition.  The CI experienced two events (a motor vehicle accident and tightening a vice) in a 6-week period that resulted in mid to low back pain.  He was evaluated after each event and treated with non-steroidal anti-inflammatory drugs, muscle relaxers and rest.  When the back pain did not respond, plain film X-rays of his thoracic and lumbar spine were accomplished and were normal.  He was sent to physical therapy for additional treatment.  That did not decrease his symptoms and over the ensuing 8 months he underwent thoracic nerve blocks and three epidural steroid injections.  He had nerve conduction studies and magnetic resonance imaging studies of his thoracic and lumbar spine, were normal.  When he continued to experience the mid-lower back pain he was referred into the DES.  

The narrative summary (prepared 5 months prior to separation) noted the pain was a continuous, stabbing, throbbing, shooting pain with no associated bladder or bowel changes.  He was doing home rehabilitation with stretching exercises and continued to be followed by the pain clinic.  The pertinent physical exam findings are summarized in the chart below.  At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported flare-ups of pain rated at 8/10, that incapacitated him at least ten times over the last 12 months requiring quarters and bed rest.  He stated that pain lasted approximately 48 hours.  At that time, the only treatment he was under was stretches and ibuprofen.  The physical exam findings are noted in the following chart.

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/MEB ~4 Mo. Pre-Sep	VA C&P ~1 Mo. Pre-Sep	
Flexion (90 Normal)	50	40	
Combined (240)	185	150	
Comment	Pos. painful motion; Neg. Waddell’s signs; No Deluca criteria	Normal gait; No tenderness to palpation; No painful motion; Normal strength, sensation & reflexes, No Deluca criteria	
§4.71a Rating	20% (PEB 20%)	20% (VA 20%)	

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA applied VASRD code 5237 (lumbosacral strain), to the CI’s back pain condition and both rated at 20% based on ROM measurements documented by different examiners on different days.  The Board considered each exam to be comprehensive in nature and both were performed within 4 months prior to separation and had similar probative values.  The PT/MEB exam documented forward flexion at 50 degrees while the C&P exam documented 40 degrees of forward flexion, both consistent with the 20% rating under the General Rating Formula for Diseases and Injuries of the Spine.  The Board considered VASRD code 5243, intervertebral disc syndrome, for its rating recommendation based on incapacitating episodes; however, the evidence does not support that diagnosis.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 20% for the lumbosacral strain condition was appropriately recommended in this case.

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 lumbosacral strain 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 20140327, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150007567 (PD201401471)

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