RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200406 SEPARATION DATE: 20030611
BOARD DATE: 20121220
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty CPT/0‐3 (35D/Military Intelligence), medically
separated for chronic low back pain (LBP) with L5/S1 herniated disc. The CI first presented with
LBP in 1998. He was initially managed with conservative measure; however redeveloped LBP in
the final few years of active duty, and did not improve adequately with treatment to meet the
physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness
standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board
(MEB). The MEB determined that the herniated disc in the L4‐L5 region (the Board noted that it
was actually in the L5S1 region) and chronic LBP were medically unacceptable and forwarded
the two conditions for Physical Evaluation Board (PEB) adjudication. Chronic bilateral patellar
tendonitis, right knee patellar tendon tear, chronic orofacial pain, masticatory myalgia/co‐
contraction, cervical myalgia/co‐contraction, episodic anterior digastric spasm (by history), right
TMJ (temporal mandibular joint) articular disc disorder, reducing, and chronic tinnitus
conditions, identified in the rating chart below, were forwarded by the MEB as medically
acceptable. The PEB adjudicated the chronic LBP with (an) L5S1 herniated disc conditions 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. The CI made no
appeals and was medically separated with a 10% disability rating.
CI CONTENTION: “The U.S. Army concluded that I was injured with ten serviceable connected
conditions. The Veterans Affairs Administration rated the serviceable connected conditions at
60%. The Army's rating did not follow in accordance with the Veterans Affairs Board (VASB).
The Army's rating was 10% regarding the same service connected conditions. Please re‐Iook all
the conditions and make a fair assessment.” The CI continued his contention on the back page.
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 conditions chronic bilateral patellar
tendonitis, right knee patellar tendon tear, chronic orofacial pain, masticatory myalgia‐
contraction, episodic anterior digastric spasm, right TMJ articular disc disorder, reducing, and
chronic tinnitus as requested for consideration meet the criteria prescribed in DoDI 6040.44 for
Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting
conditions. 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.
LBP w/L5/S1
Patellar
RATING COMPARISON:
Service PEB – Dated 20030225
Condition
Chronic
Herniated Disc
Chronic
Bil
Tendonitis
R Patellar Tendon Tear
Chronic Orofacial Pain
Masticatory Myalgia…
Episodic Ant Digastric…
Right TMJ …
Chronic Tinnitus
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 10%
Code
5293‐5299‐
5295
Not Unfitting
Not Unfitting
Not Unfitting
Not Unfitting
Not Unfitting
Not Unfitting
Not Unfitting
Rating
10%
VA (1 Wk Post‐Separation) – All Effective Date 20030612
Rating
Condition
Lumbar Spine…
20%
10%
DJD Left Knee
DJD Right Knee
10%
Code
5299‐5292
5003
5003
Exam
20030507
20030507
20030507
TMJ Syndrome
9999‐9905
20%
20030507
Bilateral Tinnitus
Chronic HAs Associated w/TMJ
0% X 3 / Not Service‐Connected x 8
Combined: 60%
6260
9905‐8100
10%
0%
20030507
20030507
ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit
and vital fighting force. 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 DES
has neither the role nor the authority to compensate members for anticipated future severity
or potential complications of conditions resulting in medical separation nor for conditions
determined to be service‐connected by the Department of Veterans Affairs (DVA) but not
determined to be unfitting by the PEB. However the DVA, operating under a different set of
laws (Title 38, United States Code), is empowered to compensate all service‐connected
conditions and to periodically re‐evaluate said conditions for the purpose of adjusting the
Veteran’s disability rating should his degree of impairment vary over time. The Board’s role is
confined to the review of medical records and all evidence at hand to assess the fairness of PEB
rating determinations, compared to VASRD standards, based on severity at the time of
separation. The Board notes that the presence of a diagnosis at separation does not render the
condition unfitting and, thereby, ratable. The Board utilizes DVA 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. The Board’s authority as defined in DoDI
6044.40, 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. The Board did review the additional clinical information from 2011 and
2012, but these did not affect the adjudication.
Back Condition. The CI was first seen for LBP in 1998, 5 years prior to separation. Initially, he
was successfully managed conservatively, but had continued pain and radiation which lead to
magnetic resonance imaging (MRI) on 30 November 2000. It showed a small central disc
protrusion at L5S1. He continued to be managed with duty limitations, medications and
physical therapy. The CI was seen in family practice on 23 September 2002 reporting chronic
LBP and requesting a permanent profile. He was seen a month later in orthopedics and noted
to have a possible recurrent herniated nucleus pulposus (HNP) at L5S1. The CI was next seen 19
December 2002 for possible extension of active duty service. He had a P2 profile and was able
to do “all stated approved activities.” The MRI was repeated on 8 January 2003, 5 months prior
to separation, and showed the L5S1 HNP with possible nerve root compression. The CI was
apparently seen in physical medicine a few days later and given a permanent L3 profile for his
back condition on 13 January 2003. He was noted to be non‐deployable and that he could not
meet the requirements of his MOS. In the last year of active duty, the CI was placed on
quarters once, for 72 hours, on 31 July 2002 for back and knee pain. The narrative summary
2 PD1200406
(NARSUM) dictated on 20 January 2003, 5 months prior to separation. The examiner noted that
the CI was well nourished and in no apparent distress. Sensation, strength and reflexes were
normal and there was no atrophy present. Flexion was decreased 40 degrees in flexion, but
range of motion (ROM) normal otherwise. Provocative testing for radicular irritation was
positive on the right. Multiple tender points were noted about the right gluteal region. At the
MEB examination 2 weeks later on 3 February 2003, the CI reported continued LBP. The MEB
examiner noted tenderness to palpation over the lumbar spine. Gait and posture were normal.
Musculature was symmetrical and without spasm. The ROM was reduced secondary to pain as
above. The neurological examination was normal. At the VA Compensation and Pension (C&P)
examination on 7 May 2003, 1 month prior separation, the CI reported a several year history of
pain, but denied fatigability, reduced endurance, incoordination or flare‐ups. Gait and posture
were normal. The ROM was reduced from pain and without DeLuca findings. The musculature
was symmetrical and without atrophy. The neurological examination was normal.
Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB
were chronic bilateral patellar tendonitis, right knee patellar tendon tear, chronic orofacial
pain, masticatory myalgia/co‐contraction, cervical myalgia/co‐contraction, episodic anterior
digastric spasm, right TMJ articular disc disorder, reducing, and chronic tinnitus conditions. 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 (Resolution of reasonable doubt) standard used for its rating
recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. Of
these conditions, only the knees were profiled and the last profile, a L2 profile, expired 6
September 2002, 9 months prior to separation. The commander’s statement implicated all of
the contended conditions; however, it did so without an apportionment of relative contribution
of each condition to duty impairment, reducing the value of the statement. None of the
conditions were judged to fail retention standards. There was a single evaluation for tinnitus in
the service treatment record (STR). It was accomplished while in the DES process and there
was no evidence of duty impairment. Other than X‐rays during the DES process, the CI was last
seen for the knees 10 months prior to separation and was not on a profile for his knees at
separation. The conditions related to the TMJ condition were thought to be secondary to the
chronic LBP. All of these conditions were reviewed by the action officer and considered by the
Board. There was no indication from the record that any of these conditions significantly
interfered with satisfactory duty performance other than temporarily. After due deliberation 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 any of the
contended conditions and, therefore, no additional disability ratings can be recommended.
The Board directs attention to its rating recommendation based on the above evidence. The
PEB coded the back condition as 5293, intervertebral disc syndrome, and 5299‐5295, analogous
to lumbosacral strain, rated it at 10%. The VA coded the back condition analogous to 5292,
analogous to lumbar limitation of motion, but rated it at 20% for a moderate limitation in
motion. The Board noted that the codes 5292, 5293 and 5295 are no longer used, and this case
was adjudicated under the old spine rules which have since been superseded. The Board is
required to use the VASRD in effect at the time of separation. The Board then considered the
findings. The examinations by both the MEB and VA clinicians showed a normal neurological
examination, inconsistent with a significant radiculopathy. The ROM testing was reduced on
both examinations. The Board determined that the disability in evidence would warrant a
moderate disability under the 5292 coding option and a 20% rating. No other coding option
would provide a more favorable rating to the CI. After due deliberation, considering all of the
evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board recommends
a disability rating of 20% coded 5292 for the back condition.
3 PD1200406
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 condition, the Board unanimously
recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a. In the matter of the
contended chronic bilateral patellar tendonitis, right knee patellar tendon tear, chronic
orofacial pain, masticatory myalgia/co‐contraction, cervical myalgia/co‐contraction, episodic
anterior digastric spasm, right TMJ articular disc disorder, reducing, and chronic tinnitus
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:
Chronic LBP with L5S1 Herniated Disc
UNFITTING CONDITION
VASRD CODE RATING
5292
COMBINED
20%
20%
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120428, 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 XXXXXXXXXXXXXXXXXX, AR20130001038 (PD201200406)
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 to 20% without recharacterization
of the individual’s separation. This decision is final.
4 PD1200406
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:
CF:
( ) DoD PDBR
( ) DVA
Encl
XXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
5 PD1200406
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