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AF | PDBR | CY2012 | PD 2012 00795
Original file (PD 2012 00795.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2012-00795
BRANCH OF SERVICE: Army  BOARD DATE: 20140821
SEPARATION DATE: 20030904


SUMMARY OF CASE: The available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (Counterintelligence Agent Initial Entry Training) medically separated for chronic low back pain. The condition did not improve adequately to meet the requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB). The back condition was found medically unacceptable, and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition. The PEB found the back condition unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The remaining condition w as determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “The 10 percent rating for chronic low back pain (mechanical) should be changed is based on misinformation relating to the lumbar spine. The actual injury that has continued to interfere with my daily living and quality of life is right sacroiliac joint dysfunction.”


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 low back condition is addressed below. No other conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.


RATING COMPARISON :

Army IPEB – dated 20030731
 VA – (exam was 5 mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5295 10% Chronic Low Back Pain 5237 10% 20030415
Other x 1 (Not in Scope)
Other x 1 20030415
Rating: 10%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 200 40128


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his condition continues to burden him, and the significant impact it has had on his quality of life. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. The DVA, however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions and adjust the disability rating should the degree of impairment change over time.

Low Back Pain (LBP). The CI contended that his chronic pain condition should be called right sacroiliac joint dysfunction, not mechanical LBP. Since the MEB/PEB documents refer to the condition as LBP, the Board has used that terminology as well.

In January 2002, this CI began having LBP. Magnetic resonance imaging of the lower back was normal. Many different treatment modalities were tried, including electrical stimulation and trigger point injections. In spite of treatment, the back pain persisted. In January 2003, the CI was seen by Orthopedics. Forward flexion was 90 degrees. There was a slight thoracic rib hump on the left side with forward bending. Reflexes were symmetric at the knee and ankle. Straight leg raise (SLR) was negative on the left, and positive on the right at 45 degrees. There was an area of numbness over the anterior right thigh, but muscle strength in the right leg was normal.

In April 2003, the CI had a VA Compensation and Pension exam. At that time he complained of pain in the right sacroiliac joint, associated with pain and numbness in the right leg. On physical examination of the back, there was a mild twist in his lumbar spine. He was able to toe-walk, heel-walk and tandem-walk. SLR went to 90 degrees bilaterally. Deep tendon reflexes were equal bilaterally. Range-of-motion (ROM) was measured and is summarized in the chart below.

Thoracolumbar ROM
(Degrees)
 MEB/ VA C&P ~ 4 ½ mos . Pre-Sep
(20030415)
Flexion
 90
R Lat Flexion
 30
L Lat Flexion
 30
R Rotation
 35
L Rotation
 35
AO Comment
 ROM is normal

The Board carefully examined all available evidence, and direct ed attention to its rating recommendation. The VASRD coding and rating standard for the spine, which w as in effect at the time of the CI’s separation, was changed on 26 September 200 3 . The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with meas ured degrees of ROM impairment. IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation.

The Board considered the data from the back examinations noted above. In January 2003 and again in April 2003, ROM testing of the lumbar spine revealed forward flexion to 90 degrees (normal). Based on a thorough review of the evidence in the treatment record, the Board determined that at the time of separation, the CI’s back condition was best described as “slight.” There was insufficient evidence to support classifying the condition as “moderate” or “severe.” After due deliberation, the Board determined that a separation disability rating of 10% was warranted. The Board tried to find a path to a higher rating, using other codes which could be applied to the back pain condition. The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a disabling spine abnormality which would justify a higher rating. The Board also considered the matter of peripheral neuropathy. After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties. Therefore, there was no unfitting radiculopathy present at the time of separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication 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. 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 LBP 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 20120611, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record






                 
XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX , AR20150004170 (PD201200795)

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

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