RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02074
BRANCH OF SERVICE:  Army	BOARD DATE:  20150303
SEPARATION DATE:  20030818

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Indirect Fire Infantryman) medically separated for mechanical lower back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or physical fitness standards.  He was issued a permanent P3 L3 profile and referred for a Medical Evaluation Board (MEB).  The “mechanical lower back pain…” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated “mechanical lower back pain, without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion” as unfitting, rated 10% citing application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40, Appendix B-39.  The CI appealed to the United States Army Physical Disability Agency who determined the IPEB properly adjudicated the case and the CI was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

 IPEB – Dated 20030428	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Lower Back Pain…	5299-5295	10%	Lumbosacral Strain with Accompanying Posttraumatic Myofascial Pain Syndrome	5293-5295	10%	20030728	
Other x 0 	Other x 7	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20030819 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board directed attention to its rating recommendation based on the above evidence; noting that the CI was separated on 18 August 2003, 6 weeks prior to a significant change in VASRD codes and criteria for the spine and during the transition period when the interim spine rules were in effect.  The older codes and criteria were applied to rating by the PEB.  The Board’s recommendation, IAW DoDI 6040.44, must be premised on the VASRD in effect at separation; although, the VA exam evidence of course remains probative to the Board’s recommendation under the applicable VASRD criteria.  The interim 2003 VASRD coding and rating standards for the spine (effective at separation) differ significantly from the current §4.71a general rating formula for the spine.

Mechanical Lower Back Pain).  The CI initially injured his back in a motor vehicle accident, as noted in a 22 February 1999 primary care note, while in civilian status.  He was off work for several months until he was able to return to work even though still symptomatic.  On 3 May 2002, he re-injured his back.  Four days later on 7 May 2002, the CI reported back pain over the entire back and had reduced flexion and extension on examination.  The mechanism of injury was not recorded.  A consult for physical therapy on 6 June 2002, noted that the CI had fallen in a ditch and that multiple medication regimens had not been successful.  A magnetic resonance imaging (MRI) had been normal.  On 17 June 2002, it was noted in primary care that he had been rear-ended in 1999, twisted his back in a hole on 3 May 2002, and then re-injured himself on 7 May 2002 holding a cart, the latter history not previously recorded.  The examiner also recorded that the pain radiated down both legs (also noted as right) and the right upper extremity.  A 5 August 2002 accident investigation noted that the CI injured himself on 8 May 2002 when the tongue of a trailer slipped which it was being de-hitched.  A neurologist noted on 8 August 2002 that the CI reported that he had not had any benefit from medications and now required help dressing.  It was noted that the MRI, X-rays, and bone scan had all been normal.  The CI was referred to the pain clinic and was seen on 26 August 2002.  This note recorded that the injury was on 7 May 2002.  He reported crippling back pain without narcotics and right leg numbness.  He also endorsed dizziness and poor balance.  The range-of-motion (ROM) was slightly reduced at 80 degrees flexion and 180 degrees combined ROM.  He was given an epidural steroid injection which was not beneficial, but he did suffer a post procedure headache.  He was thought to have a significant psychological aspect to his pain.  On 7 September 2002, he was taken to the emergency room via ambulance for headache, trouble urinating, and back pain.  He reported the injury was on 5 May 2002.  His examination was unremarkable.  A 29 October 2002 pain management note documented right-sided LBP with radiation to both lower extremities.  It was managed with narcotics.  The narrative summary was dated 28 March 2003 and referred back to a physical performed in January 2003.  This was normal other than diffuse upper and mid back tenderness and an abnormal gait.  Subsequently, the CI was evaluated in rheumatology on 9 April 2003.  He reported that his back pain began on 7 May 2002 when he took the full weight of the tongue of a one ton trailer when it slipped.  He was using a cane to walk and appeared depressed.  He had a normal sensory examination and muscle tone.  He was noted to have a myofascial (soft tissue) pain (like) syndrome but did not meet the diagnostic criteria for this diagnosis.  Electrodiagnostic studies performed on 30 May 2003 were normal.  At the VA Compensation and Pension (C&P) exam performed on 28 July 2003, a month prior to separation, the CI reported intense pain in the morning which improved with codeine.  He reported pain which radiated to both feet.  He used a back brace and cane.  On examination, there was no abnormality of gait or posture and muscle atrophy was absent.  He was tender over the lumbar spine and paraspinal muscles.  The neurological examination was normal.  Motion was painful and flexion restricted to 30 degrees.  Extension and right and left “lateral resection” were 30 degrees (normal for extension, side bend, and rotation).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10% using the code 5299-5295 (analogous to lumbosacral strain).  The VA (per later rating decisions) also rated the back at 10%, but used the dual code 5293-5295 (intervertebral disc syndrome and lumbosacral strain).  The VARD is not in evidence, but the C&P upon which it is based is in evidence.  This ROM measurements on the VA examination show significantly reduced flexion.  This is not consistent with a normal gait and posture and lack of atrophy on examination.  The history initially was that he had strained his back in a ditch or hole, then also from holding a trailer hitch, and finally just from the trailer hitch.  The history of the trailer hitch related injury was reported several months after the initial evaluation.  The dates of the injury also vary.  The objective evidence included normal electrodiagnostic studies, MRI, X-rays, bone scan, and neurological examinations including gait.  Muscle atrophy was absent.  The rheumatologist determined that while the CI presented as a myofascial pain syndrome, he did not meet the diagnostic criteria.  While the limitation in flexion on the C&P examination supports a higher rating under 5295, it is not consistent with the preponderance of evidence available for review or the prior measurement.  In accordance with VASRD §4.7, when “…there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.”  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 back pain 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 application of the DoDI 1332.39 and AR 635-40, Appendix B-39 for rating the back pain was operant in this case and the condition was adjudicated independently of that instruction and regulation by this Board.  In the matter of the mechanical back pain 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 20140429, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150013714 (PD201402074)

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