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AF | PDBR | CY2011 | PD 2011 00366
Original file (PD 2011 00366.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD -20 1 1 - 00 366
BRANCH OF SERVICE: Army   BOARD DATE: 2014 1106
Separation Date: 20040327


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) w as an active duty SPC/E-4 (11M/ Infantryman) medically separated for low back pain. The back condition could not be adequately rehabilitated to meet the physical requirements of his Milit ary 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 “low back pain ( LBP) /lumbar spondylosis,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The I nformal PEB adjudicated “ LBP status post lumbar fusion without neurologic abnormality ” as unfitting, rated at 20% citing criteria of the Veteran s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated .


CI CONTENTION : “While on active duty I got hurt overseas in Kuwait, following returned to states I have had three (3) back surg. on was put on perm. Profile until medical discharge! What I know now the military could’ve medical me with a 30% rating, but I never knew. You should have me on record, I turned in my paperwork years ago around or about the early 2008/09 time frame. You replied a few months later that the board of veteran appeal in Washington DC will not release my medical records until they were through. Well they justed completed a claim of mine the first week of March 2014. I will really appreciated if your can review my medical situation and let me know if I qualify under those thems. Thank you much. IM will if you need any and all doc.”

The first application received in 2011 contended “because I had three surgery on my back due to the military! I also was service connected for both shoulders and both knees.”


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. The contended bilateral shoulder and knee conditions were not identified by the neither the MEB nor the PEB and thus are not 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.

In accordance with DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation. The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition. However the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veterans disability rating should his degree of impairment vary over time.


RATING COMPARISON :

Service IPEB – Dated 20031201
 VA - (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
LBP s/p Lumbar Fusion, without Neurologic Abnormality 5241 20% S/P Lumbar Fusion with Scar, without Neurological Abnormality and Degenerative Joint Disease (DJD) Sacroiliac Joints 5003-5241 40% 20040105
Other x 0
 Other x 15 20040105
Rating: 20%
 Combined Rating: 60%
Derived from VA Rating Decision (VARD) dated 20040710 (most proximate to date of separation)


ANALYSIS SUMMARY :

L ow B ack P ain (LBP) Lumbar Fusion, without Neurologic Abnormality Condition . The CI developed LBP in 1995 after completion of his physical fitness test. The CI had periods of intermittent LBP that wo rsened over time, which lead to an o rthopedics consultation in May 2001 , w hom concluded that the CI was a surgical candidate for a discogram , which was later performed . Due to the CI’s persistent complaints of LBP, a lumbar and spinal X -ray s were obtained on 21 February 2002 . X-ray images revealed decreased disc space at L5-S1 compatible with d egenerative disc disease and degenerative spurring of the sacroiliac that’s consistent with osteoarthritis. A lumbar spine magnetic resonance imaging showed broad based disc bulges at L3-4, L4-5 and L5-S1 , with moderate to severe spinal canal stenosis. The CI underwent an L3-4, L4-5 and L5-S1 discography with epidural steroid in j ection on 9 July 2002 and 8 months later that procedure was follow by a posterior lumbar interbody fusion performed on 14 January 2003 . The CI continued his post-operative care with both orthopedics and physical t he rapy for LBP .

The commander’s s tatement indicated that the CI was able to perform duties in - garrison as a unit mail clerk; however he was not deploy able due to his inability to perform his MOS duties as an Infantryman. The MEB narrative summary (NARSUM) exam ination ( obtained approximately 8 months prior to separation ), contains documentation that the CI had marked and frequent LBP episodes, which precluded him from performing the majority of his activities of daily l iving, disrupted his sleep and required narcotics for pain control . P hysical therapy performed MEB range-of-motion ( ROM ) measurements ( approximately 5 months prior to separation ) . The above stated exam ination findings are summarized in the chart below .

The VA Compensation and Pension (C&P) exam ination ( approximately 3 months prior to separation ) documented chronic LBP that precluded him from most of his activities of daily living, such as limited to taking shower s , an inability to wear socks, cutting toenails, tying his shoelaces and removing his shoes. The VA C&P physical exam findings are also summarized in below char t.

There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.



Thoracolumbar ROM (Degrees) PT 4.5 Mos. Pre-Sep VA C&P 3 Mos. Pre-Sep
Flexion (90 Normal) 45 30
Combined (240) - 80
Comment ROM limited by poor effort; stiff during ROM;2/5 positive Waddell signs Back brace; Normal gait, strength/sensation & reflexes
§4.71a Rating 20% 40%

The Board directs attenti on to its rating recommendation based on the above evidence . The PEB coded the LBP , l umbar f usion without n eurologic a bnormality condition as 5241 (s pinal fusion ) , rated at 20%. The VA coded the l umbar f usion with s car, without n eurological a bnormality and degenerative joint disease of the sacroiliac j oints as 5003 -5241 ( degenerative arthritis and spinal fusion ) r ated at 40%. The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “ w ith or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease ” .

The Board considered the probative value between the physical therapy exam (approximately 5 months prior to separation ) and the VA C&P exam ( 3 months prior to separation ) . Although both exam ination s contained detailed comments, the VA C&P exam contained complete ROM’s measurements to include a combined ROM val ue. The Board noted that the physical therapy exam contained relevant comments related to the CI’s effort during the evaluation . Additionally, the Board noted the CI was perform ing mailroom duties satisfactorily as cited in the c ommander’s statement . After a thorough discussion, a consensus of the Board members adjudged that the physical therapy exam ination was the most probative valued exam and more likely reflected the CI’s disability at the time of separation. The PEB appropriately utilized the forward flexion of 45 degrees documented on the physical therapy exam ination to arrive at its 20% evaluation. The Board did not find any evidence of an unfitting neurologic abnormality. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB’s adjudication of the LBP, lumbar fusion without n eurolo gic a bnormality .


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, lumbar fusion, without neurologic abnormality condition and IAW VASRD § 4.71a, the Board , by a majority vote, 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 recharacterization of the CI’s disability and separation determination .










The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20 140316 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record





                          
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150003609 (PD201100366)


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

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