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AF | PDBR | CY2012 | PD2012 00524
Original file (PD2012 00524.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:   CASE: PD1201497
BRANCH OF SERVICE: Army  BOARD DATE: 20130418
SEPARATION DATE: 20040102


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SSGT/E-6 (63H/Track Vehicle Repairer), medically separated for chronic low back pain (LBP). The CI injured his back in May of 2002 when he dove into a shallow lake. He experienced a loss of consciousness and back pain. He was treated conservatively, but could not be adequately rehabilitated 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 also forwarded right shoulder pain, hypertension, gastroesophageal reflux disease (GERD) and hypercholesterolemia, identified in the rating chart below, as not disqualifying. The Physical Evaluation Board (PEB) adjudicated the chronic LBP condition as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to meet retention standards and therefore to be not unfitting and not ratable . The CI made no appeals; and was medically separated.


CI CONTENTION: “The rating board only gave me a 10% rating for my back, neck, bone spur on my spine, Right shoulder and nothing for TBI.”


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 rated unfitting condition chronic LBP and the service determined not unfitting right shoulder conditions as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview. While neither the MEB nor PEB listed the neck pain, it was contended by the CI in his rebuttal to the MEB; and it did not meet the Board purview. The Board also acknowledges the CI’s contention that traumatic brain injury (TBI) (DD Form 294 Block #3) and posttraumatic stress disorder as contended in his email to the PDBR received on January 22, 2013 be included in our review, but these conditions do not meet the requirements outlined in DoDI 6040.44 above for the Board’s scope of review. 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 Board for Correction of Military Records.

IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus 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 ratable severity at the time of separation and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.


RATING COMPARISON :

Service IPEB – Dated 20031117
 VA - (4 Mos. Pre-Separation) Effective 20021126
Condition
 Code Rating Condition Code Rating Exam
Chronic LBP 5237 10% DDD of L4-L5… 5010-5292 20% 20030812
Right Shoulder Pain Not Unfitting Right Shoulder Injury, H/O… 5201 10%* 20030605
Hypertension Not Unfitting Not Service Connected
GERD Not Unfitting No VA Entry
Hypercholesterolemia Not Unfitting No VA Entry
No Additional MEB/PEB Entries
 Other x 3 20030605
Combined: 10%
 Combined: 40%
VARD 20030905 * Rating increased by VARD 20040925 from initial rating of 0% effective 20031020.


ANALYSIS SUMMARY: The CI was not on active duty while the MEB was in progress; he was separated from the Army National Guard. The CI had a long history of episodic back pain. While on active duty service, he dove into a shallow lake on 27 May 2002. He reported cervical and thoracic back pain and loss of consciousness for five minutes. He was medically evaluated and treated. He finished his tour of active duty. Later, he again suffered LBP and was excused from reporting to his National Guard duties by a private physician due to this condition. He had a general counseling form on 3 May 2003 for back injuries sustained on active duty, back pain, and discomfort in lower back; with a recommendation of no pay/no drill status. His profiled limitations on 12 August 2003 were for chronic LBP syndrome lower extremity (L3), and chronic right shoulder pain upper extremity (U2), and restrictions were no running, bicycling, swimming, walking, or running in pool at own pace, no wearing a backpack (40 lbs.), no lifting more than 20 lbs., no KP (kitchen duty)/mopping/mowing grass, no marching. His commander’s performance statement on 9 October 2003 remarked the CI could not perform fitness training; that the CI was constantly complaining of back pain while performing his MOS; that he was constantly seeking medical attention while mobilized on active duty, and that he failed to meet height and weight standards. His civilian occupation was supervising inmates in a warehouse at a federal prison, without limitations.

Chronic Low Back Unfitting Condition): The CI had back pain first reported in 1994; he later had an X-ray performed for mild unrelenting back pain in 1997 that showed thoracic scoliosis and mild lower lumbar facet arthropathy. He was again evaluated on 1 May 2002 for a 2 month history of LBP with a normal physical exam. He had X-rays that showed a normal lumbosacral spine, with degenerative change at T11 prior to trauma. After the trauma suffered on 27 May 2002, he had X-rays for pain over the sternum and mid thoracic spine on 28 May 2002, which showed normal cervical spine, mild mid-thoracic dextroscoliosis, and normal sternum. On
23 July 2002, he was seen by physical therapy for 3 month history of LBP, with tenderness found over the lumbar area. He had no abnormal exam findings upon demobilization physical. On 20 January 2003, a note from private family practitioner stated the CI had an osteophyte at T11, and arthritis of the cervical spine, and had recently suffered a lumbar muscle strain, and he could not drive to drill location. On 6 March 2003 the civilian family practice physician excused the CI from PT test, or riding in a vehicle to his National Guard unit for weekend training, for low back pain radiating to the left leg. A magnetic resonance imaging (MRI) exam on 23 March 2003 revealed a small L4-L5 posterior herniated nucleus pulposus, and a minimal L5-S1 posterior disk bulge, without evidence of neural foraminal compromise, nerve root impingement, or spinal stenosis. The MEB narrative summary on 19 September 2003, 4 months prior to separation, notes the CI stated he dove into a shallow lake with loss of consciousness in May 2002 while on active duty from November 2001 thru November 2002. The CI claimed chronic back pain since the injury. Pain was constant and mostly in the back, increased at night lying down and early in the morning, pain was exacerbated by heavy lifting and running. There were also complaints of pain, numbness, and tingling in the front of right thigh. There were no bowel or bladder symptoms. Pain was relieved with Percocet once per week, and walking, stretching or sitting down to rest. Physical examination revealed tenderness in the lower thoracic to upper lumbar spine and paraspinal muscles with some rigidity noted, negative straight leg raise (SLR) pain, deep tendon reflexes were normal, normal strength and muscle tone, and heel to toe and duck walk were normal. At a VA Compensation and Pension (C&P) on 6 June 2003, 9 months prior to separation, he CI reported pain of his lower back and stiffness of his neck since the injury May 2002. Physical examination revealed normal posture, slow walking, positive straight leg raising pain, tenderness of the L3-5 paravertebral muscles. At the C&P spine exam on 12 August 2003, 7 months prior to separation the CI gave additional history of an episode of back pain in 1994, treated with Motrin. The CI reported pain of his lower back and pain of his neck when it pops while turning to the left since the injury May 2002. He also reported left leg pain when he had LBP. Physical examination revealed tenderness of the paravertebral muscle area L4-5, positive SLR pain.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)
 VA C&P 9 Mo. Pre-Sep
(20030605)		 VA C&P spine ~7 Mo. Pre-Sep
(20030812)
 PT/MEB ~5 Mo. Pre-Sep
(20030919)
Flexion (90 Normal)
 90 85 65
Combined (240)
 - - 170
Comment
 + Tenderness ;
+Straight leg raising ;
 No mention of spasm ; Slow normal gait;		 + Tenderness
+Straight leg raising
No mention of spasm 		+ Tenderness ;
 Neg straight leg raising;
 No mention of s pasm
§4.71a Rating
 10% 10% 10%

The Board directeS attention to its rating recommendation based on the above evidence. The Board considered the VASRD diagnostic code 5237 (lumbosacral or cervical strain) used by the PEB for a 10% disability rating, which is adjudicated under the general rating formula for diseases and injuries of the spine in effect at the time of adjudication. The Board reviewed the clinical treatment record and found that the CI did not meet the 20% rating criteria of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, abnormal kyphosis, or incapacitating episodes, for a higher adjudication. The Board then considered VASRD codes 5010 (arthritis due to trauma)-5292 (spine, limitation of motion of, lumbar) that the VA rated at 20% in accordance with the VASRD in effect at the time of the VA adjudication. The Board must comply with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time of separation. The 2003 VASRD coding and rating standards for the spine, which were in effect at the time of VARD rating, were changed to the current §4.71a rating standards in 26 September 2003. The standards for rating ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards at the time of separation specify rating thresholds in degrees of ROM impairment. When older cases have goniometric measurements in evidence, the Board reconciles (to the extent possible) its opinion regarding degree of severity for the older spine codes and ratings with the objective thresholds specified in the current VASRD §4.71a general rating formula for the spine. The Board considered the evidence and found that the limitation of motion of the lumbar spine could best be described as slight without incapacitating episodes for a 10% rating. 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 chronic low back pain condition.

Contended PEB Conditions: The Board’s main charge is to assess the fairness of the PEB’s determination that right shoulder pain was not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The chronic shoulder pain was profiled as a permanent upper extremity (P2) condition; it was a chronic condition present since a 1998 injury and rotator cuff surgery while on a civilian job, and had a 10% VA disability rating and civil service compensation since 1999. There was no indication of worsening of the condition, further injury, or further limitations imposed after discharge from the November 2001 thru 2002 active duty tour. The chronic shoulder pain was not implicated in the commander’s statement; and was judged by the Board not to fail retention standards. 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 contended condition and so no additional disability ratings are recommended.


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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended right shoulder pain condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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
 VASRD CODE RATING
Chronic Low Back Pain Condition 5237 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120715, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review

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