RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
SEPARATION DATE: 20040126
NAME: XXXXXXXXXXX
CASE NUMBER: PD1201455
BOARD DATE: 20121121
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SPC/E‐4 (91E10/Dental Assistant), medically
separated for chronic low back pain without neurologic abnormality or documented chronic
paravertebral muscle spasms on repeated examinations, with characteristic pain on motion.
The CI had no back pain until April 2000 when she twisted her back during an exercise and was
subsequently diagnosed with mechanical low back pain with mild scoliosis. Despite a change of
Military Occupational Specialty (MOS), profile restrictions, physical therapy and pain
medications she could not be adequately rehabilitated to meet the physical requirements of
her MOS or satisfy physical fitness standards. She was issued a permanent L3 profile and
referred for a Medical Evaluation Board (MEB) for chronic lower back pain. The MEB forwarded
no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the
low back condition as unfitting, rated 10% with cited application of the Department of Defense
Instruction (DoDI) 1332.39 and AR 635‐40. The CI made no appeals, and was medically
separated with a 10% disability rating.
CI CONTENTION: “Condition worsening in pain and frequency.” She also attached a letter to
the PDBR. “This letter is in response to PDBR letter received May 25, 2012, which provides me
the opportunity to have my DoD disability rating reviewed for fairness and accuracy. I would
like my disabilities reviewed/evaluated due to the fact that although I can function day to day
with the ergonomic devices provided at my place of employment/home and medications some
of my disabilities still seem to be very agitating and discomforting i.e. my seasonal allergic
rhinitis (horrible monthly and sometimes weekly appointments‐not tolerable without the 7
prescribed medications), back ‐spasms (lumbosacral strain, nummular eczema, buttocks‐
discomfort decreased with medications), knee pain (decreased with medication and brace), and
flat feet ((plantar fasciitis‐pain when on feet for long periods of time, very limited on shoes that
I can purchase (often have to purchase more expensive orthopedic shoes)). I would like these
conditions evaluated in order to see if suggestions can be made on how to decrease the
discomfort in my daily activities and/or financial assistance can be provided in order to allow
me to start the chiropractic appointments for my back/buttock that I received in the military
(very expensive on the civilian side). In addition, having these conditions evaluated can further
assist my job with the guidance needed to provide the proper ergonomic accommodations in
my work area.”
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 unfitting back condition requested for
consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, and is
accordingly addressed below. The other requested conditions of seasonal allergic rhinitis, knee
pain, eczema and flat feet 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:
Mechanical Low Back Pain
– characteristics of Pain
on Motion
Service IPEB – Dated 20030916
Condition
Code
Rating
VA (2 Mos. Pre ‐Separation) – All Effective Date 20040127
Condition
Code
Rating
Exam
5299‐5295
10%
Lumbosacral Strain
5237
10%*
20031201
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 10%
0% X 6 / Not Service‐Connected x 3
Combined: 10%*
20031201
* Back, 5237, increased to 20% and right knee, 5260 at 10% with effective dates of 20040127 for a combined 30% rating by DRO
dated 20111020, based on appeals, post‐separation treatment records and exam of 20100128. Left knee, 5260 at 10% effective
20091030 (combined 40%).
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 the 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.
Low Back Condition. There were three 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.
Chiropractor ~3 Mo. Pre‐Sep
VA C&P ~2 Mo. Pre‐Sep
Thoracolumbar ROM
Flexion (90⁰ Normal)
MEB ~6 Mo. Pre‐Sep
“full flexion to touch floor”
§4.71a Rating
10%
10%
The narrative summary (NARSUM), performed 6 months prior to separation, notes CI complaint
of lower back pain which started after a field exercise injury in April 2000. The CI was treated
with nonsteroidal anti‐inflammatory medication, muscle relaxants, and physical therapy
without relief of pain. The CI had a permanent L3 profile with restriction to run at own pace
and distance, limit repetitive bending at the waist, and limit carrying weight to pain tolerance,
not to exceed 40lbs. The CI history was significant for mild mid‐thoracic scoliosis per 20 April
2000 radiographs and noted on the CI’s physical profile. The MEB physical exam, performed 6
months prior to separation, demonstrated tenderness in the lower lumbar area with full ROM
of lumbar spine, normal muscle strength, and no radicular signs. In October 2003, 3 months
prior to separation, the CI was evaluated by a chiropractor and was diagnosed with Facet Joint
2 PD12‐01455
Ext (0‐30)
R Lat Flex (0‐30)
L Lat Flex 0‐30)
R Rotation (0‐30)
L Rotation (0‐30)
Combined (240⁰)
Comment
30⁰
30⁰
30⁰
“full”
“full”
~240⁰
Flexion … increased pain,
normal strength, sensation,
reflexes; tenderness; normal
x‐rays except for scoliosis
90⁰
30⁰
30⁰ (35⁰)
30⁰ (35⁰)
30⁰
30⁰
240⁰
+ painful motion
90⁰
30⁰
30⁰
30⁰
30⁰
30⁰
240⁰
10%
+ Full ROM; Minimal pain
& tenderness; x‐ray:
minimal lordosis L‐spine
w/ min kyphosis T‐spine
Syndrome. The physical exam demonstrated full ROM with pain and 5/5 muscle strength. The
CI continued physical therapy and chiropractic care without relief of pain. At the VA
Compensation and Pension (C&P) exam performed 2 months prior to separation, the CI
reported sharp, right lower back pain radiating to her buttock and the right thoracic area. The
CI reported that the pain was worse with physical training and increased physical activity. She
reported the use of a muscle relaxant at night and NSAIDs twice daily. The physical exam
showed full ROM with minimal pain at the extremes of forward flexion, tenderness, normal gait
and posture, and no radiculopathy. X‐rays documented minimal kyphosis in the thoracic spine
and minimal lordosis in the lumbar spine. There was no mention of guarding or spasm in the
exam. The Board directs attention to its rating recommendation based on the above evidence.
The PEB coded the lower back condition as 5299‐5295 at 10% for painful ROM. The PEB coding
5299‐5295 was under the older VASRD spine criteria which were changed to the newer spine
criteria effective 26 September 2003, which is prior to the CI’s date of separation. The VA
coded the lower back condition as 5237 lumbosacral strain claimed as facet joint syndrome
initially at 10%, IAW the newer VASRD coding. Subsequent VA exams over 5 years remote from
separation were noted, and discussed as well as the retroactive VA award of a 20% 5237 rating.
The Board considered rating under the older spine criteria in effect at the time of the PEB
adjudication, as well as the newer spine criteria in effect at the time of separation. All exams,
under either criteria would warrant a 10% rating with application of VASRD §4.59 (painful
motion). There is no route to a rating higher than 10% under any applicable code and no
coexistent pathology which would merit additional rating for the lower back condition under a
separate code. The Board therefore recommends coding under the VASRD in effect at the time
of separation as 10% coded 5237. 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 10% adjudication for the lower back condition, but
recommended a change in code to 5237 to align with the VASRD in effect at the time of
separation.
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. As discussed above, PEB
reliance on DoDI 1332.39 and AR 635‐40 for rating the lower back condition was operant in this
case and the condition was not adjudicated independently of that instruction by the Board. In
the matter of the lower back condition and IAW VASRD §4.71a, the Board unanimously
recommends no change in the PEB rating at 10%, but a change of the disability code to 5237
IAW the VASRD in effect at the time of separation. There were no other conditions within the
Board’s scope of review for consideration.
3 PD12‐01455
RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as
follows, effective as of the date of her prior medical separation:
5237
COMBINED
10%
10%
Chronic Low Back Pain without neurologic abnormality
UNFITTING CONDITION
VASRD CODE RATING
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120606, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
XXXXXXXXXXX, DAF
President
Physical Disability Board of Review
4 PD12‐01455
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 XXXXXXXXXXXXXXXX, AR20120022709 (PD201201455)
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 description without modification of the
combined rating or 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 PD12‐01455
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