RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
SEPARATION DATE: 20070518
NAME: XXXXXXXXXXXXXXXXX
CASE NUMBER: PD1200160
BOARD DATE: 20121106
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was a mobilized Reserve SPC/E‐4 (21J10/Construction Equipment
Operator), medically separated for chronic back pain. The CI initially injured his back during
basic training and did well after an initial surgery. However, during a deployment to Iraq, the CI
reinjured his back and his back pain persisted despite a second surgery and use of multiple
treatment modalities. The CI did not improve adequately with treatment and was unable to
meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical
fitness standards. He was issued a permanent P3, U2, L3, and S2 profile and referred for a
Medical Evaluation Board (MEB). Posttraumatic Stress Disorder (PTSD) and hyperlipidemia
(mild) conditions, identified in the rating chart below, were also identified and forwarded by
the MEB. The Physical Evaluation Board (PEB) adjudicated the chronic back pain condition as
unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities
(VASRD). The remaining conditions were determined to be not unfitting. Although the CI
originally requested a formal hearing, he later withdrew the request and was medically
separated with a 10% disability rating.
CI CONTENTION: “Conditions for which the Medical Board determined for disability were/are
much more severe than rating established.”
SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI
6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined
by the PEB to be specifically unfitting for continued military service; or, when requested by the
CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings
for unfitting conditions will be reviewed in all cases. The PTSD and hyperlipidemia conditions
meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed
below along with the unfitting condition of chronic back pain. 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 Army Board for Correction of Military Records.
RATING COMPARISON:
VA (~1 Mo. Post‐Separation) – All Effective Date 20070518
Service IPEB – Dated 20070320
Code
Condition
5241
Not Unfitting
Not Unfitting
Chronic Back Pain
Post Traumatic Stress Disorder
Hyperlipidemia
Rating
10%
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 10%
Condition
Lumbar Spine Disc Replacement
Post Traumatic Stress Disorder
Code
5299‐5241
9400
Rating
20%*
30%**
NO VA ENTRY
Not Service‐Connected x 11
Combined: 40%***
Exam
20070625
20070625
20070625
*Effective 20110912: 5299‐5241 changed to 5237‐5243 and increased to 40% with 8520 (Right Sciatic
Radiculopathy) added at 40%, and 8520 (Left Sciatic Radiculopathy) added at 20%.
**Increased to 50% effective 20091227.
***Increased to 60% effective 20091227 and increased to 90% effective 20110912.
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application,
i.e., that the gravity of his condition and predictable consequences merit consideration for a
higher separation rating. The Board wishes to clarify that it is subject to the same laws for
service disability entitlements as those under which the Disability Evaluation System (DES)
operates. 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 all service‐connected conditions and to periodically reevaluate said
conditions for the purpose of adjusting the Veteran’s disability rating should the degree of
impairment vary over time. The Board utilizes DVA evidence proximal to separation in arriving
at
interval for special
consideration to post‐separation evidence. The Board’s authority as defined in DoDI 6040.44,
however, resides in evaluating the fairness of DES fitness determinations and rating decisions
for disability at the time of separation. Post‐separation evidence therefore is probative only to
the extent that it reasonably reflects the disability and fitness implications at the time of
separation.
Chronic Back Pain Condition.
There were three goniometric range‐of‐motion (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.
its recommendations; and, DoDI 6040.44 defines a 12‐month
Thoracolumbar ROM
Flexion (90⁰ Normal)
Ext (0‐30)
R Lateral Flex (0‐30)
L Lateral Flex 0‐30)
R Rotation (0‐30)
L Rotation (0‐30)
Combined (240⁰)
Med Holdover
~17 Mos
Pre‐Separation
60°/65° (60, 65, 65)
20°/25° (20, 20, 25)
15° (15, 15, 15)
15° (15, 15, 15)
30° (45, 45, 45)
30° (45, 45, 45)
170⁰/180°
MEB
~3 Mos
Pre‐Separation
40° (50, 40, 38)
15° (13, 13, 13)
25°/30° (26, 28, 28)
30° (31, 33, 33)
30°(32, 34, 34)
30° (30, 30, 35)
170⁰/175°
VA C&P
~1 Mo
Post‐Separation
0‐60⁰
0‐25⁰
0‐30⁰
0‐30⁰
0‐30⁰
0‐30⁰
205⁰
Comment
Limitation of motion due to
pain and stiffness.
Repeated trunk flexion
increased radicular pain.
All Waddell’s signs
negative. Reflexes
symmetric and normal.
Limitations of extension and
lateral flexion were
mechanical, motion in other
planes limited by pain.
Reflexes all symmetric and
normal. Waddell’s all
negative.
Pain at termination of flexion and
extension. No decrease with
repetitive use. Intermittent
radiation of pain and numbness of
right lower extremity, none on day
of exam. Normal gait. Reflexes 2+
equal bilaterally, motor 5/5
bilaterally.
20%
§4.71a Rating
20%/10%
20%
The MEB narrative summary (NARSUM) was completed in March 2007, approximately 2
months prior to separation. No ROM measurements were measured at that time and the
examiner referred to the measurements from physical therapy, presumably from the February
2007 examination. The CI initially injured his back during Basic Training and underwent an L5‐
S1 micro‐laminectomy with discectomy, right in May 2004. He apparently did well after the
surgery and was returned to full duty. The NARSUM states this occurred in May 2004,
however, a pre‐operative letter from the orthopedic surgeon noted the CI would have activity
restrictions for at least 3 months after surgery and in a letter dated 23 July 2004, the surgeon
noted the CI could return to work without restrictions on 26 July 2004. A physical therapy note
from July 2005 noted the CI had deployed in September 2004 and the increased activity had
been accompanied by increased back pain with radiating pain, numbness, and tingling in the
right lower extremity that had been present ever since. The record contains various reports of
injury while deployed and the CI apparently was returned to CONUS early for back pain.
Magnetic resonance imaging (MRI) from July 2005 noted a right sided L5‐S1 disc protrusion
2 PD1200160
with right lateral recess stenosis and bilateral neural foraminal stenosis. An orthopedic
evaluation from August 2005 noted pain radiating down both legs, with the left worse than the
right. Examination at that time revealed a positive straight leg raise bilaterally but no
weakness, altered reflexes, or decreased sensation. Bilateral S1 nerve root injection brought
little relief. Electromyogram (EMG) testing in September 2005 was normal. He continued to
have back and bilateral leg pain and in October 2005, the right leg pain was worse than the left.
In February 2006, the CI underwent an L5‐S1 anterior lumbar discectomy with insertion of an
L5‐S1 artificial disc. His pain did not resolve and he continued physical therapy and was treated
in a pain clinic with a trial of nerve block and joint injections. Although he had some transient
improvement, the injections did not provide relief and he was referred for an MEB.
At the VA Compensation and Pension (C&P) exam completed approximately a month after
separation, the CI reported current back pain rated at 7 or 8/10 even after taking narcotic pain
medication that morning. He also noted his back pain often kept him awake at night and that
he had intermittent paresthesias and numbness of the right leg that was associated with spasm.
He had been receiving treatment at a pain clinic and treatment included use of a
transcutaneous electrical nerve stimulation (TENS) unit, epidural injections every 6 weeks, and
at home exercises. His back pain would flare at least twice a day with increased limitation of
function. He noted he was able to walk a half a mile. If he walked further or if he sat for long
periods of time, his pain would increase.
The PEB applied a 10% disability rating for pain‐limited motion and some paraspinal muscle
tenderness. The VA assigned a 20% rating based on forward flexion of the thoracolumbar spine
greater than 20 degrees but not greater than 60 degrees. The VA continued the 20% rating
after an October 2008 C&P examination. The VA did later increase the spine rating to 40% and
add additional ratings of 40% for right sciatic radiculopathy and 20% for left sciatic
radiculopathy after a March 2012 C&P examination. This was clearly due to worsening of
symptoms over time. It is not clear why the PEB did not assign a 20% rating based on the
reported ROM measurements. The Board directs attention to its rating recommendation based
on the above evidence. The ROM measurements obtained by physical therapy for the MEB
document thoracolumbar flexion as 50 degrees, 40 degrees, and 38 degrees. Not only does this
show decreased ROM after repeated movements, each of these measurements supports a
rating of 20% IAW the VASRD General Rating Formula for Diseases and Injuries of the Spine for
thoracolumbar spinal flexion greater than 30 degrees but not greater than 60 degrees. Both
the NARSUM and VA C&P examinations support a 20% rating based on limitation of flexion.
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable
doubt), the Board recommends a disability rating of 20% for the chronic back pain condition.
The record contains documentation of radicular pain and paresthesias. 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 CI had significant pain in both lower extremities
but the pain component of a radiculopathy is subsumed under the general spine rating as
specified in §4.71a. Although the CI reported numbness, he had repeatedly normal neurologic
examinations without any evidence of motor, sensory, or reflex abnormality and had normal
EMG testing in September 2005. Since no evidence of functional impairment exists in this case,
the Board cannot support a recommendation for additional rating based on peripheral nerve
impairment.
Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB
were PTSD and hyperlipidemia (mild). The Board’s first charge with respect to these conditions
is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s
threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable
doubt) standard used for its rating recommendations, but remains adherent to the DoDI
6040.44 “fair and equitable” standard.
3 PD1200160
After due deliberation
Although the PTSD condition was profiled, it was an S2 profile and this alone is insufficient
cause for an MEB referral. However, since the CI was undergoing an MEB for chronic back pain,
this condition was evaluated to determine fitness. A psychiatric MEB NARSUM addendum was
completed 3 months prior to separation and while it did document a diagnosis of PTSD that was
being treated with therapy and medication, the CI had improved to the point where he had
minimal symptoms and the examiner opined he was in full remission with a Global Assessment
of Functioning (GAF) of 80 and had no military or psychiatric impairment. The examiner noted
the condition was medically acceptable. The commander’s letter makes no mention of any
mental health condition or ability to perform in assigned MOS due to mental illness. The CI was
in medical holdover and was performing administrative tasks without difficulty. Hyperlipidemia
is an abnormal lab value and not a disorder and therefore cannot be determined to be
unfitting. Both conditions 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 duty performance.
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 either of the contended and
therefore, no additional disability ratings can be recommended.
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 back pain condition, the Board unanimously
recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a. In the matter of the
contended PTSD and hyperlipidemia conditions, the Board unanimously recommends no
change from the PEB determinations as not unfitting. There were no other conditions within
the Board’s scope of review for consideration.
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
5241
COMBINED
20%
20%
Chronic Back Pain
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120103, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
XXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
4 PD1200160
SFMR‐RB
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXX, AR20120022705 (PD201200160)
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 t0 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
XXXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
5 PD1200160
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