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AF | PDBR | CY2012 | PD2012 00462
Original file (PD2012 00462.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX   CASE: PD1200462
BRANCH OF SERVICE: Army  BOARD DATE: 20131120
SEPARATION DATE: 20030710


SUMMARY OF CASE: Data extracted from the available evidence reflects that this covered individual (CI) was an active duty PFC/E-3 (44B/Metal Worker/Welder), medically separated for low back condition. He was originally seen at the neurosurgery clinic at Winn Army Community Hospital in September 2002 complaining of left buttock pain and posterior thigh numbness after an episode of heavy lifting. Later that month, he underwent a left L5-S1 partial laminectomy and discectomy. Over the course of the next several months, his pain evolved to almost exclusively low back pain (LBP) and it was thought that further invasive intervention would be unlikely to benefit him. He was given an L3 profile in 2003 and referred for a Medical Evaluation Board (MEB) based on LBP. The condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as medically unacceptable. The PEB adjudicated chronic LBP, with episodic left lower extremity (LLE) pain, without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion, referencing DoDI 1332.39 and the US Army Regulation 635-40. The CI made no appeals and was medically separated.


CI CONTENTION: “Due to injury while on active duty, spinal fusion deemed necessary and performed on 1/17/11. As a result, unable to be employable due to liability issues. PM&R has stated no manual labor to ever be performed. Civilian SS has found me 100% disabled. Due to these findings and being unable to supplement income and injury being specific to active duty, I feel that rating needs to be changed since I am permanently disabled.”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the low back condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any other 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 Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20030726
 VA – dated 3 months post separation
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain, With Episodic Left Lower Extremity Pain, Without Neurologic Abnormality Or Documented Chronic Paravertebral Muscle Spasms On Repeated Examinations, With Characteristic Pain On Motion. 5293-5299
5295		 10% Status Post L5-S 1 Discectomy 5299 20% 20031020
No additional unfitting conditions
 Other x1
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 200 2 02 26 ( most proximate to date of separation [ DOS ] ).
ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System 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. The Board also noted that the PEB adjudicated this case IAW the interim spine rules which were the rules in effect at the time of separation. The DVA examination and rating determination were both after the date of implementation of the new rules on 26 September 2003, and used the current spine rules for rating. The Board utilizes the spine rules in effect at the time of separation.

Chronic Low Back Pain Condition. The CI first recorded to have LBP when he presented after he slipped on 18 June 2002, approximately 6 weeks after activation, while carrying a heavy gas cylinder with immediate onset of pain. An X-ray that day was normal. Two months later, a magnetic resonance imaging (MRI) exam of the lumbar spine was significant for a central disc bulge with nerve root impingement at L4-5 and herniation of the L5-S1 disc again with nerve root impingement. In September, the CI had a left laminectomy at L5-S1. A post-operative MRI performed on 28 October 2002 was significant at L5-S1 for post-surgical changes, a persistent herniation and possible retained disc material. There was no significant interval change at L4-5 from the previous MRI. Post-operatively, he had continued LBP which was aggravated by pre-deployment preparations. He was determined not to meet retention standards, issued an L3 profile and referred to an MEB. The commander stated that the CI was unable to meet the requirements of his Military Occupational Specialty due to his back condition. At the MEB examination on 13 March 2003, the CI reported persistent LLE tingling and LBP. The MEB physical examiner noted a well healed scar, but tenderness at the site. The narrative summary was dictated by the treating neurosurgeon on 21 March 2003, 3 months prior to separation, and noted that epidural steroid injections had also failed to provide relief. Further invasive management was not thought to be of any benefit. Electrodiagnostic testing of the LLE was normal. On examination, there was a well healed mid-line scar. There was no spasm, the range-of-motion (ROM) was full and the neurological examination was normal. At the VA Compensation and Pension (C&P) examination performed on 7 October 2003, 3 months after separation, the CI reported that the LBP was chronic and radiated into both buttocks and occasionally into the LLE. He denied any incontinence or further injury to his back since separation, but stated that his LBP had flared the past few days. He was unemployed at the time of the examination. On examination, his ROM was reduced with 40 degrees of flexion (90 is normal) and 20 degrees of left and right lateral flexion (30 is normal). No values for rotation were recorded. His gait favored the left and the reflexes were not recorded, but the neurological examination was otherwise normal. An MRI the next day revealed L4-5 central disc herniation with lateral stenosis. There was also herniation at L5-S1 with facet hypertrophy and severe left and moderate right laminal stenosis. There were no further records in evidence proximate to separation.

The Board directs attention to its rating recommendation based on the above evidence. The PEB cited painful motion and rated the back condition at 10% using the Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5293 (intervertebral disc syndrome) and 5299-5295 (analogous to lumbosacral strain). As noted above, the PEB used the interim spine rules in effect between 23 September 2002 and 26 September 2003 whereas the VA utilized the current spine rules. The Board adjudicated this case IAW the interim spine rules. The VA coded the back condition as 5243 (intervertebral disc syndrome) and also coded a LLE radiculopathy as 8522 (neuropathy of the superficial peroneal nerve), rating them as 20% and 0% respectively. The Board first considered the MEB and C&P examinations. Both were essentially equally proximate to separation. However, the MEB examination was performed by the treating physician who was a neurosurgeon. The Board observed that there was a significant reduction in the ROM between the two examinations without a history of intervening trauma to explain the deterioration. The Board therefore determined that the MEB examination had higher probative value and based its rating recommendations on it. The examination documented a normal ROM, normal neurological examination, a well healed scar, and absence of spasm. Incapacitation was not documented on either examination. The Board considered the various coding options available and none provided a route to a higher rating than the 10% awarded by the PEB. 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 LBP condition.

The Board also considered the subjective radiculopathy. It noted that electrodiagnostic testing had been negative for the LLE, the neurosurgical neurological examination normal, and the C&P neurological examination was also normal albeit incomplete. The Board determined that the preponderance of evidence did not support the presence of an unfitting radiculopathy condition at separation. The Board concluded therefore that this condition could not be recommended for additional disability rating.


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 for rating the back condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. 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 re-characterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION VASRD CODE RATING
Chronic Low Back Pain 5293
5299-5295		 10%
COMBINED 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120602, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20140003689 (PD201200462)


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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)


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