RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army

CASE NUMBER: PD1100226 SEPARATION DATE: 20080731

BOARD DATE: 20111214

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty member, SPC/E-4 (92A, Automated Logistics Specialist), medically separated for lumbosacral strain. The CI’s initial injury occurred in December 2004 when he was struck by a car during his tour in Korea. He was again struck by a car in January 2008 during his stateside assignment. He 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). The MEB forwarded “chronic lumbar pain” to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Two other conditions, as identified in the rating chart below, were forwarded on the MEB submission as medically acceptable conditions. The Informal PEB (IPEB) adjudicated the “lumbosacral strain” condition as unfitting, rated 10%, with application of the Veterans’ Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating.

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CI CONTENTION: The CI states: “I was rated 10% and unfit to stay in the Army by the Army, but the VA rated my back at 40%, so I would like to get a re-look at my records and also I have been rated for several other conditions which the Army did not rate me for. My total rating from VA is 60%. All injuries were related to military service which is service connected.” He additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

* 5237 decreased to 20% effective 20100901 **5201-5024 increased to 20% effective 20101116

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application, i.e., that there should be additional disability assigned for his other conditions and for the gravity of his condition and predictable consequences which merit consideration for a higher separation rating. While the Disability Evaluation System (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. However, the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to periodically re-evaluate Veterans for the purpose of adjusting the disability rating should his degree of impairment vary over time.

Back Condition. There were two goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation. Both of these exams are summarized in the chart below.

The CI sustained two back injuries after being struck by a car first in December 2005 and again in January 2008. After the first incident, the CI was given a temporary profile, a non steroidal anti-inflammatory drug (NSAID) and a referral to physical therapy (PT). Because the PT was ineffective the CI was referred for chiropractic care, which was also ineffective and he was then referred to a civilian pain management specialist and issued a transcutaneous electrical nerve stimulation (TENS) unit. A lumbar spine x-ray in June 2007 showed questionable facet changes at L4-5 however a Thoracic spine x-ray and, oblique lumbar spine views were negative along with an MRI of the lumbar spine. A bone scan done in January 2008 was questionable; however, a thoracic spine CT done was normal. The MEB examination four months prior to separation documented constant chronic sharp aching, burning back pain and aching in the CI’s legs along with some numbness and tingling localized to the posterior calves bilaterally when he lies down. All ROMs were pain limited by pain on exam and were unchanged on repetition. However, Waddell’s testing was positive on 4/5: simultaneous rotation, distraction, pain behaviors, and pain on superficial touching in a distribution that does not correspond to any specific anatomical structure. The examiner stated he was not able to assess any limitation of joint function without resorting to mere speculation due to multiple positive non-organic findings and discrepancies of range of motion in different positions. The CI was unable to do running; prolonged walking; prolonged standing; prolonged sitting; lifting, and carrying weight; and sit-ups and push-ups were painful. The VA compensation & pension (C&P) examination indicated lumbar pain radiating to both lower legs and there was a possible association with some sensory symptoms in both legs, however there were no sensory or motor abnormalities on neurological exam. The CI had significant painful motion on exam and the examiner deferred repetitive range of motion examination secondary to the degree of pain present. There was no mention of Waddell’s signs and no reason to doubt the validity of the examination was noted by the examiner.

The CI’s pain symptoms and pain radiculopathy is considered under the general rating formula for diseases of the spine “with 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.” Although the CI had sensory symptoms with pain, the neurology exam noted no sensory or motor abnormalities. 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 pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case has no functional implications. Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

All exams prior to separation clearly met the 40% criteria “forward flexion of the thoracolumbar spine 30 degrees or less.” Both examinations document similar levels of impairment. The MEB exam documents positive Waddell’s signs and the examiner stated he was not able to accurately assess joint function because of non-organic findings. However, he does state the thoracolumbar spine range of motion was limited by pain and apparently is unable to assess the mechanical limitation of range of motion. The exam states that while in supine position, the CI could forward flex at waist to 85 degrees with legs fully extended, but with low back pain. However, it does not specify the degree of flexion where the pain occurred. The VA C&P also documents a severe degree of pain on motion. The VA Schedule for Rating Disabilities (VASRD) paragraph §4.59 Painful motion states: the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Limitation of motion of a joint due to pain is rated the same as limitation of motion due to mechanical obstruction. The PEB and the VA chose the same disability code 5237 Lumbosacral or cervical strain; however, the PEB rated at 10% and the VA rated at 40%. While not specifically mentioned, the PEB may have applied the Army pain rule. PEB documents specify the 140 degrees of combined ROM which, by itself, would result in a 10% rating but not the 25 degrees of forward flexion which warrants a 40% rating. After due deliberation, considering all of the evidence, the Board recommends a separation rating of 40% for the lumbosacral strain condition absent the addition of any ratable radiculopathy. This rating is based on thoracolumbar spine forward flexion limited to 30 degrees or less documented on both the PEB and VA examinations prior to and within four months of separation from service.

Other PEB Conditions. The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were hyperlipidemia and prediabetes. Neither of these conditions were profiled, implicated in the commander’s statement, or noted as failing retention standards. Both were reviewed by the action officer and considered by the Board. There was no indication from the record that either of these conditions significantly interfered with satisfactory performance of MOS duty requirements. All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for any of the stated conditions.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for cervical strain, status post left shoulder contusion, tinnitus, left ear hearing loss, deviated septum and tension headaches. All of these conditions were reviewed by the action officer and considered by the Board. None of these conditions carried attached profiles and none were implicated in the commander’s statement or were significantly clinically or occupationally active during the MEB period. There was no evidence for concluding that any of the conditions interfered with duty performance to a degree that could be argued as unfitting. The Board determined therefore that none of the stated conditions were subject to Service disability rating.

Remaining Conditions. Other conditions identified in the DES file were unilateral hearing loss, unilateral vision loss and elevated fasting blood sugar and cholesterol. 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. 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. No other conditions were service connected with a compensable rating by the VA within twelve months of separation or contended by the CI. 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. In the matter of the lumbosacral strain condition, the Board unanimously recommends a rating of 40% coded 5237 IAW VASRD §4.59 and §4.71a. In the matter of the hyperlipidemia and prediabetes conditions, the Board unanimously recommends no recharacterization of the PEB adjudications as not unfitting. In the matter of the cervical strain, status post left shoulder contusion, tinnitus, left ear hearing loss, deviated septum and tension headaches unilateral hearing loss, unilateral vision loss, elevated fasting blood sugar and cholesterol 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 and that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation.

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The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110324, 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. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.

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:

a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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)