RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
SEPARATION DATE: 20040901
NAME: XXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200252
BOARD DATE: 20130110
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty 1LT/O2 (Student/Flight School), medically separated
for chronic low back pain due to degenerative disk disease. In March 2003, CI developed low
back pain (LBP) after a helicopter hard landing while he was in the back of the aircraft as a
trainee. His pain progressed to the point that he required assistance to get out of the aircraft
later on. He was removed from flying status in May 2003. He was treated with various
modalities including epidural steroid injections (ESI) without resolution of his symptoms.
Neurosurgical consultation was made and he was found to have no surgical condition. He was
issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB
forwarded LBP and degenerative disk disease (DDD) without radiculopathy for Informal Physical
Evaluation Board (IPEB) adjudication. The IPEB adjudicated chronic LBP due to DDD without
neurologic abnormality condition as unfitting, rated at 10%, with application of the Veteran’s
Affairs Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB (FPEB) and
it affirmed the IPEB findings; and the CI was then medically separated with a 10% disability
rating.
CI CONTENTION: “I was rated at 30% immediately following separation by the VA. I am now
rated at 90% total schedule and paid at 100% rate due to individual unemployability. 40% of
the 90% is due to degenerative disc disease of the same discs as rated 20% by the Army.”
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 remaining conditions rated by the VA
at separation and listed on the DA Form 294 are not within the Board’s purview. 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:
Service FPEB – Dated 20040507
Condition
Chronic Low Back Pain due
to Degenerative Disc
Disease
Code
5299
5237
‐
Rating
10%
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 10%
VA ~3 Months Post‐Separation – All Effective Date 20040902
Condition
Degenerative Joints and Disc Disease,
Strain and Disc Bulging, Thoracolumbar
Spine and History of Bilateral Peripheral
Neuropathy
Bilateral Tinnitus
Code
5010
‐
5237
6260
Rating
Exam
20%*
20041217
10%
20041217
0% X 3 / Not Service‐Connected x 5
Combined: 30%**
*Initially rated as Lumbosacral Strain 5237 at 0%, although initial VA rating Decision (VARD) text stated 10% based
on flexion limited to 60 degrees. Later VARD (20051201) changed to above rating with same effective date. The
rating was later increased to 40% effective 20100819, the date of claim for increased evaluation.
**Increased to 80% effective 20100819 with increase of 5010‐5237 to 40% and addition of bipolar disorder 9434 at
70%. Increased to 90% with bilateral factor of 1.9% effective 20110928 with addition of Right and Left Leg
Radiculopathy, each 8520 at 10%.
ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating
the fairness of Disability Evaluation System (DES) fitness determinations and rating decisions for
disability at the time of separation. The Board utilizes VA evidence proximal to separation in
arriving at its recommendations; and, DoDI 6040.44 defines a 12‐month interval for special
consideration to post‐separation evidence. Post‐separation evidence is probative only to the
extent that it reasonably reflects the disability and fitness implications at the time of
separation.
Back Condition: There were two 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.
MEB ~7 Months Pre‐Separation
VA C&P ~3 Months Post‐Separation
No tenderness; negative straight leg raise
and seated straight leg raise bilaterally;
sensation to light touch intact in bilateral
lower extremities; strength 5/5 in bilateral
lower extremities; reflexes 1+ in bilateral
lower extremities; negative clonus
Pain at extremes of all motions except
rotations; no additional limitation with repeated
motion; no spasm or tenderness; normal
posture and gait; intact motor and reflexes;
decreased sensation with monofilament testing
of bilateral lower extremities
The MEB narrative summary (NARSUM) completed approximately 7 months prior to separation
indicated that treatment with nonsteroidal anti‐inflammatory medications (NSAIDs) and ESI did
not lead to resolution of the CI’s LBP. Physical examination findings are noted in the chart
above. Measurements were reportedly made with a goniometer and averaged and the raw
values are not available for review. A nerve conduction study completed in June 2003 was
normal with no evidence of to suggest significant neuropathy in any of the four extremities. A
lumbar spine magnetic resonance imaging (MRI) exam performed in June 2003 noted a
degenerated disc bulge at L4‐5 without focal herniation or canal stenosis. It showed some
degenerative changes and some desiccation at L4‐5. It was concluded that CI had LBP with DDD
and without radiculopathy. An orthopedic outpatient visit in February 2004 noted flexion
limited by pain to 75 degrees and extension limited by pain to 20 degrees. The VA
compensation and pension (C&P) exam completed approximately 3 months after separation
2 PD12‐00252
Thoracolumbar ROM
Flexion (90⁰ Normal)
Ext (0‐30)
R Lat Flex (0‐30)
L Lat Flex 0‐30)
R Rotation (0‐30)
L Rotation (0‐30)
Combined (240⁰)
Comment
§4.71a Rating
70⁰ (72)
30⁰
15⁰ (no pain)
15⁰ (no pain)
30⁰ (40)
30⁰ (40)
190⁰
10%
60⁰
20⁰
25⁰
25⁰
30⁰
30⁰
190⁰
20%
reported a similar clinical history and indicated that CI had numbness in both legs in addition to
his daily LBP rated as 7 out of 10. The numbness occurred two to three times a week with his
usual activities of daily living and was aggravated by physical activity such as driving his car. The
VA examiner reported CI had a single episode of incapacitation for a week in June 2003
following a round of ESI when he was ordered to be on bed rest. VA C&P examinations in
December 2010 noted thoracolumbar flexion limited to 30 degrees and continued decreased
sensation that was limited to medial aspect of both feet. A new finding of bilateral lower
extremity decreased strength with 4/5 strength at knee flexors and extensors and ankle plantar
flexion and 3/5 strength at ankle dorsiflexion. Knee reflexes were absent and ankle reflexes
were 2+ and symmetrical.
The Board directs attention to its rating recommendation based on the above evidence. The
PEB assigned a 10% rating based on thoracolumbar flexion greater than 60 degrees but not
greater than 85 degrees. The VA assigned a 20% rating based on thoracolumbar flexion greater
than 30 degrees but not greater than 60 degrees. While both VA and PEB chose to use 5237
code, the 5243 code for Intervertebral disc syndrome could also be used given the underlining
pathology. Disability ratings for the 5243 code can be based on either incapacitating episodes
or the criteria of the General Rating Formula for Diseases and Injuries of the Spine. The CI’s
single incapacitating episode had confined him to bed rest for 1 week and less than 2 weeks;
any rating above 10% based on incapacitating episodes cannot be justified. Although the C&P
exam was completed closer in time to the date of separation, both examinations are complete
and the MEB narrative summary (NARSUM) examination was completed prior to separation.
The CI’s back pain condition appears to have worsened over time. It continued to worsen in the
years after separation and the rating was increased to 40% 6 years after separation from
service. However, there is no evidence in the record that supports a determination that
thoracolumbar flexion was ever limited to 60 degrees or less prior to separation. After due
deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the
Board concluded that there was insufficient cause to recommend a change in the PEB
adjudication for the back 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. In the matter of the back
condition 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 recharacterization of
the CI’s disability and separation determination, as follows:
UNFITTING CONDITION
Chronic Back Condition
VASRD CODE RATING
5299‐5237
COMBINED
10%
10%
3 PD12‐00252
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120307, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for
XXXXXXXXXXXXXX, AR20130000811 (PD201200252)
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
XXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
4 PD12‐00252
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