RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
SEPARATION DATE: 20080118
NAME: XXXXXXXXXXXXXX
CASE NUMBER: PD1200381
BOARD DATE: 20121211
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SFC/E‐7 (35L40/Counter Intelligence), medically
separated for chronic low back pain (LBP). Despite surgical intervention, chronic intermittent
left LBP did not improve adequately to meet the physical requirements of his Military
Occupational Specialty (MOS) or satisfy unrestricted physical fitness standards. He was issued a
permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded
no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the
chronic LBP as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating
Disabilities (VASRD). The CI made no appeals and was medically separated with a 10% disability
rating.
CI CONTENTION:
determination that I was no longer fit for duty. Continue to get back injections twice a year.”
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 the unfitting conditions will be reviewed in all cases. 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:
“Was surprised by percentage considering severity of
injury and
Service IPEB – Dated 20071210
VA (3 Mos. Post‐Separation) – All Effective Date 20080119
No other VARDs in evidence
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. The Board wishes to clarify that it 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 anticipated future severity
or potential complications of conditions resulting in medical separation. That role and
authority is granted by Congress to the Department of Veterans Affairs (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
Condition
Chronic Low Back Pain
Code
5241
Rating
10%
No Additional MEB/PEB Entries
Combined: 10%
Condition
Lumbar Disc Disease, s/p Discectomy
and Lumbar Fusion (L5‐S1)
Chronic Left Shoulder Strain
Code
5243
5201
0% X 1 / Not Service‐Connected x 5
Rating
20%
10%
Exam
20080407
20080407
20080407
Combined: 30%
Thoracolumbar ROM
Degrees
Flexion (90 Normal)
Combined (240)
Comment
§4.71a Rating
45
125
Goniometer utilized, ROMs are averages;
individual ROMs not listed); ‐ Tenderness;
spasm; abnormal gait
Rotation values obtained 20071120
20% (IPEB rated 10%)
50 mechanical stop
185
Tenderness; painful motion. Weak left
ankle dorsiflexion
VA rated 20%
the fairness of DES fitness decisions and rating determinations for disability at the time of
separation. 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. 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. 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 ~4 Mo. Pre‐Sep
VA C&P ~3 Mo. Post‐Sep
The CI first noted LBP in 1995 without specific injury. He was seen for LBP several more times
over the next few years and managed conservatively with medications, physical therapy (PT)
and duty modification. In March of 2005, he had sudden onset of left lower extremity (LLE)
weakness and numbness during a fitness test run. A CT scan showed a left‐sided broad based
disc bulge at L5‐S1 which contacted the left S1 nerve root. Degenerative joint disease (DJD) was
also noted. Conservative management, including nerve root injections, failed to control the
pain. A discogram confirmed concordant pain at L5‐S1. On 27 April 2006, he underwent a
transforaminal lumbar interbody fusion (TLIF) at L5‐S1. He did well post‐operatively, but had
persistent pain and was entered into the MEB process in May 2007. Two months later,
resolution of the LBP was noted at a 21 June 2007 orthopedic follow‐up (15 months after
surgery, 7 months prior to separation), but radicular pain, albeit improved, persisted. His motor
examination was noted as being unchanged from the normal examination 2 months earlier.
There were no further appointments for the LBP condition prior to separation other than for
the MEB evaluation. At the MEB exam performed on 21 August 2007, the CI reported
persistent LBP. The MEB physical exam noted limited and painful ROM. The MEB narrative
summary (NARSUM) was dictated on 19 September 2007, 4 months prior to separation. The CI
reported satisfactory control of his pain, but that he could not meet military fitness standards
or wear required military personal protective equipment. Sensation, strength and reflexes
were normal although the CI reported subjective paresthesias in the posterior LLE. His gait was
normal and ROM limited mechanically. No comment was made on spasm or posture. At the
VA Compensation and Pension (C&P) examination on 7 April 2008, 3 months after separation,
the CI reported that he could no longer participate in sports as he did prior to the injury and
surgery and that he guarded his movements. His only medication was a muscle relaxer which
he took several times a week. No incapacitation was noted. His movements were noted to be
“careful” and gait minimally antalgic, favoring the LLE. On examination, the scars were well
healed. Limitation in flexion was noted to be mechanical. Sensation, strength and reflexes
were normal other than 4/5 dorsiflexion of the left ankle. The Board directs attention to its
rating recommendation based on the above evidence. The PEB rated the back at 10% and
coded it as 5241, spinal fusion. The VA rated the back 20% and coded it 5243, intervertebral
disc syndrome. The Board noted that an evaluation of 20 percent is assigned for forward
flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.
This limitation is present on both ROM examinations. The weakness in ankle dorsiflexion
observed on the C&P examination was not present on the prior to separation MEB examination
2 PD1200381
or the two orthopedic examinations accomplished after MEB initiation. The sensory
examination was normal other than subjective paresthesias on the NARSUM examination.
There is no evidence that either condition impaired duty separate from the back pain. After
due deliberation
in consideration of the preponderance of the evidence, the Board
recommends a disability rating of 20% for the chronic low back pain condition, coded 5241.
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 low back pain condition, the Board unanimously
recommends a disability rating of 20%, coded IAW VASRD §4.71a. 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:
Chronic Low Back Pain
UNFITTING CONDITION
VASRD CODE RATING
5241
COMBINED
20%
20%
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120420, 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 / XXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXX, AR20130000018 (PD201200381)
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
3 PD1200381
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
XXXXXXXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
4 PD1200381
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