RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02008
BRANCH OF SERVICE:  Army	BOARD DATE:  20140828
SEPARATION DATE:  20050628

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (62B/Construction Equipment Repairman) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty, so he was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (anxiety disorder) to the PEB.  The Informal PEB adjudicated the back condition as unfitting, rated at 10%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions, including the following mental health, brain injury, back injuries, neck injuries, hand injuries, knee injuries, ankle injuries.”

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 ratings for the unfitting back and anxiety condition are addressed below.  The requested brain, neck, hand(s), knee(s) and ankle(s) conditions were not identified by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board.  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 20050620	VA - (2.5 Mos. and 3.5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	10%	Low Back Strain with Lumbar Disc Disease; Bilateral  Lower Extremity Radiculopathy	5243	10%	20050906	
Anxiety Disorder	Not Unfitting	Posttraumatic Stress Disorder (PTSD)	9411	NSC*	20051013	
Other x 0 (Not in Scope)	Other x 10	20050906	
Rating:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20051207. *VARD 20070323 awarded 10% rating for service connected PTSD.

ANALYSIS SUMMARY:

Back Condition.  The narrative summary (NARSUM) noted the CI described his low back pain (LBP) as insidious in onset, after carrying heavy boxes upstairs, in December 2001.  Initial evaluation in July 2002 found [muscle] spasms and tenderness on the right paraspinous region.  The CI was prescribed anti-inflammatory medications and physical therapy (PT).  He showed some improvement that allowed for deployment to Iraq in April 2004, where he was able to perform his duty.  A troop medical clinic entry dated 14 October 2004, noted the CI reported he re-injured his back on 10 October 2004.  He noted the pain intensity remained constant all day long.  He was assessed with LBP.  Physical therapy (PT) entry on 1 December 2004, recorded range-of-motion (ROM) forward flexion, on three trials, had an average of 50 degrees.  A magnetic resonance imaging (MRI) dated 2 December 2004, demonstrated normal alignment of the spine without evidence of degenerative joint disease.  There was disk bulge at L4-5 without evidence of significant neural compromise, and disk bulge at L5-S1 that demonstrated mild left neural foraminal narrowing.  Some arthritic changes were noted in the lower lumbar spine.  The NARSUM the neurosurgeon determined the CI had nonsurgical pathology and noted the back condition was mostly muscular (consult not among records).  

The profile prohibited lifting greater than 20 pounds; however, the CI could perform sit-ups, walk, swim, and bike for Army Physical Fitness Testing and could participate in unlimited walking, upper and lower body weight training.  The MEB NARSUM, dated 11 April 2005 (approximately 2 months prior to separation), noted on physical examination, a slightly antalgic gait secondary to pain.  There was no evidence of muscle atrophy or spine abnormalities.  There was tenderness to palpation of the spinous processes.  The examiner recorded flexion, “down to a length of 33 cm from the floor” (mildly reduced, or normal), normal motor strength and normal neurological examination.  The VA Compensation and Pension (C&P) examination on 6 September 2005, noted the CI had multiple episodes of back strain that resulted in the report of LBP with some pains into the legs bilaterally.  Physical examination recorded a normal gait, normal appearing spine, with tenderness on palpation, no spasms and no neuromuscular deficits.  ROM measured on flexion was 75 degrees. There was pain on flexion at 75 degrees; the examiner noted loss of motion with repetitive use secondary to pain.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% for low back pain coded 5237 (lumbar strain), noted mildly restricted ROM.  The VA rated 10% code 5243 (intervertebral disc disease and reduced ROM).  A higher rating of 20% under code 5237 requires spasms producing abnormal gait, or abnormal curvature of the spine or forward flexion not greater than 60 degrees.   The Board agreed there was pain on motion supporting the 10%.  The Board noted the ROM that recorded forward flexion of 45-55 degrees was not consistent with the ROM at the VA and at the MEB and was several months prior to separation.  All Board members agreed, the preponderance of evidence does not support the higher rating of 20% under ROM code.  The Board considered rating under 5243; however, there was no evidence or ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under code 5243.  There were no other applicable codes to consider.  After due deliberation, considering all of the evidence and mindful of VA Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the anxiety disorder condition was 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 Board noted there were no available treatment records related to a mental health condition; however, one clinic entry indicated the CI was treated by a civilian provider and had been prescribed medication.  All Board members agreed that evidence of the record reflected minimal mental health related symptoms.  The CI noted on the MEB physical examination that he had frequent trouble sleeping, but did not have depression or excessive worry and no suicide attempts.  The MEB examiner noted “anxiety attacks”, without elaboration.  There was no evidence of visits to the emergency room for mental health issues, no report of suicidal or homicidal ideations, violence or legal issues.  Although, the condition was profiled, the commander statement stated, the CI “was a good soldier, but physical condition creates a burden for others in his maintenance team and adversely impacts readiness.” The anxiety condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any 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 the contended condition and so 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 chronic low back pain condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended anxiety disorder condition, 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, 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 20140502, 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, AR20150008208 (PD201402008)

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