RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                                BRANCH OF SERVICE:  Army
CASE  NUMBER:    PD1100134                                        SEPARATION
DATE:  20070426
BOARD DATE:  20120228


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was an active duty SPC/E-4  (94E,
Communication Security  Radio  Repair  Operator),  medically  separated  for
chronic low back pain  (LBP).   The  CI  developed  LBP  while  deployed  to
Afghanistan from January 2004 through April 2004.  He was treated with anti-
inflammatories, physical therapy and temporary profiles.  The CI’s  symptoms
improved with treatment and he was able  to  deploy  to  Afghanistan  for  a
second time from October 2004  through  January  2005.   During  the  second
deployment, the CI’s LBP recurred, exacerbated by  parachuting,  carrying  a
ruck sack and wear of a flack vest.  The CI did not  respond  adequately  to
treatment and  was  unable  to  perform  within  his  Military  Occupational
Specialty (MOS) or  meet  physical  fitness  standards.   He  was  issued  a
permanent L3  profile  and  underwent  a  Medical  Evaluation  Board  (MEB).
Chronic low back pain (with degenerative disc disease) was forwarded to  the
Physical Evaluation Board (PEB) as medically  unacceptable  IAW  AR  40-501.
No other conditions appeared on  the  MEB’s  submission.   Other  conditions
included in the Disability Evaluation System (DES) packet will be  discussed
below.  The  PEB  adjudicated  the  chronic  low  back  pain  (secondary  to
degenerative disc disease) condition as unfitting, rated  10%;  with  likely
application of the US Army Physical Disability Agency (USAPDA) pain  policy.
 The CI made no appeals, and was medically separated with a  10%  disability
rating.


CI  CONTENTION:   The  CI  states:   “Refer  to  VA  medical  records.”   He
elaborates no specific contentions regarding rating or coding  and  mentions
no additionally contended conditions.


RATING COMPARISON:

|Service IPEB – Dated 20070118|VA (1 Mo. After Separation) – All         |
|                             |Effective Date 20070427                   |
|Condition                    |Code                              |Rating |
|Combined:  10%               |Combined:  60%*                           |


* Increased lumbar spine, 5242, to 20%; and cervical  spine,  5242,  to  10%
effective 20090602 (combined 70%).  Added ulcerative  colitis,7399-7323,  at
30% effective 20091020 (combined 80%)





ANALYSIS SUMMARY:  The Board acknowledges the  sentiment  expressed  in  the
CI’s  application  regarding  the  significant  impairment  with  which  his
service-incurred  condition  continues  to  burden  him  (as  evidenced   by
comparison to  higher  and  later  Department  of  Veterans’  Affairs  (DVA)
ratings).  The Board wishes to clarify that it is subject to the  same  laws
for service disability entitlements as those under which the  DES  operates.
The DES has neither  the  role  nor  the  authority  to  compensate  service
members for  anticipated  future  severity  or  potential  complications  of
conditions resulting in medical separation.   That  role  and  authority  is
granted by Congress to the DVA, operating under  a  different  set  of  laws
(Title 38, United States Code).  The Board evaluates DVA  evidence  proximal
to separation in arriving at its recommendations, but its authority  resides
in  evaluating  the  fairness  of   DES   fitness   decisions   and   rating
determinations for disability at the time of  separation.   The  Board  also
acknowledges the CI's contention  suggesting  that  service  ratings  should
have  been  conferred  for  other  conditions  documented  at  the  time  of
separation and for conditions not diagnosed while in the service (but  later
determined to be service-connected by the DVA).   While  the  DES  considers
all of the service member's medical conditions,  compensation  can  only  be
offered for those medical conditions  that  cut  short  a  service  member’s
career, and then only to the degree of  severity  present  at  the  time  of
final disposition.  The DVA, however, is empowered  to  compensate  service-
connected conditions and to periodically  re-evaluate  said  conditions  for
the purpose of adjusting the Veteran’s disability rating should  the  degree
of impairment vary over time.

Chronic Low Back Pain Secondary to Degenerative Disc  Disease.   There  were
two goniometric range-of-motion (ROM)  evaluations  in  evidence  which  the
Board weighed in arriving at its rating recommendation.  These were the  MEB
narrative summary and the VA Compensation  and  Pension  (C&P)  examination.
The exam findings are summarized in the chart that follows.

|Goniometric ROM|MEB ~ 4 Mo.    |VA C&P ~ 2 Wks.   |
|- Thoracolumbar|Pre-Sep        |After-Sep         |
|               |(20061211)     |(20070510)        |
|Flex (0-90)    |0-45⁰          |0-90⁰             |
|Ext (0-30)     |0-17⁰ (15⁰)    |0-30⁰             |
|R Lat Flex     |0-15⁰          |0-30⁰             |
|(0-30)         |               |                  |
|L Lat Flex     |0-10⁰          |0-30⁰             |
|0-30)          |               |                  |
|R Rotation     |0-20⁰          |0-30⁰             |
|(0-30)         |               |                  |
|L Rotation     |0-15⁰          |0-30⁰             |
|(0-30)         |               |                  |
|COMBINED (240) |120⁰           |240⁰              |
|Comment        |Painful ROM;   |Painful motion;   |
|               |bilateral      |normal gait;      |
|               |spasms in lower|normal motor and  |
|               |back; positive |sensory; no       |
|               |straight leg   |incapacitating    |
|               |raise on L;    |episodes; no spasm|
|               |5-/5 L hip     |or guarding; no   |
|               |flexion, knee  |additional loss of|
|               |flexion and    |motion on         |
|               |extension      |repetitive use;   |
|               |“mainly due to |positive          |
|               |pain”; normal  |Laseague’s on L   |
|               |gait           |                  |
|§4.71a Rating  |20% (PEB – 10%)|10%*              |


            *With application of §4.59, Painful Motion

The MEB exam noted painful limitation  of  lumbar  spine  ROM,  with  active
flexion limited to 45 degrees and  a  combined  ROM  of  120  degrees.   The
examiner stated that passive flexion of the lumbar spine was limited  to  70
degrees,  with  pain  elicited  at  45  degrees.   The   exam   additionally
documented bilateral lumbar spasm, a positive straight leg test on the  left
and decreased strength (5-/5) in the left lower  extremity.   The  decreased
strength was postulated as due  to  pain.   At  the  VA  C&P  exam,  the  CI
complained of weekly flare-ups but denied any incapacitating episodes.   The
exam documented normal lumbar spine ROM with painful motion.  There  was  no
spasm, guarding, or abnormal spinal contour; there were no motor or  sensory
deficits.  Laseague’s sign was positive on the left.  The examiner noted  no
additional loss of motion with repetitive use  of  the  joint.   Both  exams
documented a normal  gait.   A  lumbar  spine  MRI           (31  May  2006)
documented disc dessication at  L5-S1  associated  with  a  broad  bulge,  a
possible annular tear and mild left neural foraminal narrowing.

The MEB examiner noted that the CI was unable to maintain awkward  positions
and unable to perform three to five second rushes, dig a  fighting  position
or run with a fighting load.  The profile allowed for the performance  of  a
two mile run, but stated no airborne operations,  no  sit-ups,  no  wear  of
flack vest, no lifting greater than 20 pounds, and no  use  of  flack  vest,
ruck sack or Kevlar.  The commander’s  statement  commented  that  the  CI’s
chronic back pain had prevented him from taking the PT test,  deploying  and
performing his assigned duties.  Specifically, the commander noted that  the
CI was unable to load and unload, move, and install communication  equipment
on board military aircrafts.  Additionally,  the  CI’s  condition  made  him
unable to maintain and monitor  equipment  mounted  in  small  compartments.
The commander concluded, “because of his physical limitations, he  can  only
provide minimal support to his team in accomplishment of their mission.”

The PEB and the VA utilized similar coding and arrived at  the  same  rating
for the condition.  The 5242 coding rates  based  upon  the  general  rating
formula for diseases and injuries of the spine.  There  were  no  documented
incapacitating episodes to justify rating based  upon  that  criteria.   The
degree of limitation of lumbar spine flexion  documented  at  the  MEB  exam
meets the criteria for 20% ratings, “forward flexion  of  the  thoracolumbar
spine greater than 30 degrees but not greater than  60  degrees;  …  or  the
combined range of motion of the thoracolumbar spine  not  greater  than  120
degrees.”  The PEB commented that ROM is limited by pain  and  their  rating
of 10% likely reflects application  of  the  USAPDA  pain  policy.   The  VA
rating of 10% reflected the finding of normal range of motion  with  painful
motion documented at the C&P exam.

The Board considered the probative value of the disparate back exams.   Both
exams were detailed  and  comprehensive;  however,  the  VA  exam  was  more
proximate to separation.  The Board considered that the differences in  exam
findings reflected episodic  improvements  and  exacerbations  in  the  CI’s
clinical course.  The limitation of  lumbar  spine  ROM  documented  at  the
service exam was associated with bilateral spasms  and  likely  reflected  a
period of symptom  exacerbation.   Episodic  back  pain  exacerbations  with
associated limitation of ROM, were well documented in  the  STR.   Likewise,
the C&P examiner documented the occurrence of weekly,  flare-ups  of  severe
back pain.  Per the VASRD §4.7, “Where 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.”   The  Board
adjudged that the CI’s  well  documented  functional  limitations  and  duty
restrictions were most consistent with the  ROM  limitations  documented  at
the service exam.

There was insufficient  evidence  of  an  unfitting  peripheral  neuropathy.
Both exams documented positive straight-leg raise testing on  the  left  and
the service exam also documented a slight decrement in left lower  extremity
strength; this decrement in strength was attributed to pain  as  opposed  to
actual weakness.  The pain component of a radiculopathy  is  subsumed  under
the  general  spine  rating  as  specified  in   §4.71a.    There   was   no
documentation of physical impairment attributed to the slight loss of  motor
strength noted at the service exam.  Board precedent is  that  a  functional
impairment tied to fitness is  required  to  support  a  recommendation  for
addition of a peripheral nerve rating at separation.  The  motor  impairment
was  relatively  minor  and  cannot  be  linked  to   significant   physical
impairment.  Since no evidence  of  functional  impairment  exists  in  this
case, the Board cannot support a recommendation for additional rating  based
on peripheral nerve impairment.  After due deliberation, considering all  of
the evidence and mindful of VASRD §4.3 (reasonable doubt) and  §4.7  (higher
of two evaluations), the Board recommends a separation  rating  of  20%  for
the chronic low back pain condition.

Remaining Conditions.  Other conditions identified in the DES file  and  the
VARD within 12 months of separation were adjustment disorder with  depressed
mood, degenerative joint  disease  of  the  right  knee,  bilateral  plantar
fasciitis and left calcaneal spur, morton’s neuroma of  the  left  foot  and
bilateral tinnitus.  Several  additional  non-acute  conditions  or  medical
complaints were also documented in the MEB history and  physical.   None  of
these conditions were  significantly  clinically  or  occupationally  active
during the MEB  period,  none  carried  attached  profiles,  and  none  were
implicated in the commander’s  statement.   The  commander’s  statement  and
profile noted only the back condition as interfering with duty  performance.
 Adjustment disorder is a condition which does  not  constitute  a  physical
disability IAW DoDI 1332.38, Encl 5.  These conditions were reviewed by  the
action officer and considered by the Board.  It  was  determined  that  none
could be argued as unfitting and subject to separation  rating.   The  Board
therefore has no reasonable basis for recommending any additional  unfitting
conditions for separation rating.


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  the
USAPDA pain policy for rating  the  chronic  low  back  pain  condition  was
operant in this case and the  condition  was  adjudicated  independently  of
that policy regulation by the Board.  In the matter of the chronic low  back
pain  condition  the  Board  unanimously  recommends  a  permanent   service
disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a.  In  the  matter
of the adjustment disorder with depressed mood, degenerative  joint  disease
of the right knee, bilateral plantar  fasciitis  and  left  calcaneal  spur,
Morton’s neuroma and bilateral tinnitus  conditions  or  any  other  medical
conditions eligible for Board consideration, the  Board  unanimously  agrees
that it cannot recommend any findings of  unfit  for  additional  rating  at
separation.


RECOMMENDATION:  The Board recommends that the CI’s prior determination be
modified as follows, effective as of the date of his prior medical
separation

|UNFITTING CONDITION                             |VASRD CODE  |RATING  |
|Chronic low back pain                           |5299-5242   |20%     |
|COMBINED    |20%     |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110323, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record



                 President
                 Physical Disability Board of Review
SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency

SUBJECT:   Department  of  Defense  Physical  Disability  Board  of   Review
Recommendation


1.  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  to
modify the individual’s disability rating to 20% without  recharacterization
of the individual’s separation.  This decision is final.

2.  I direct that all the Department of the Army records of  the  individual
concerned be corrected accordingly no later than 120 days from the  date  of
this memorandum.

3.  I request that a copy of the corrections and any related  correspondence
be provided to the individual concerned, counsel (if any),  any  Members  of
Congress who have shown interest, and to the Army Review Boards Agency  with
a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:




Encl
      Deputy Assistant Secretary
       (Army Review Boards)