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AF | PDBR | CY2012 | PD2012 00590
Original file (PD2012 00590.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:   CASE NUMBER: PD1200 590
BRANCH OF SERVICE: Army   BOARD DATE: 2013 0619
Separation Date: 20030723


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4(13D / Fire Direction Specialist ) medically separated for low back pain (LBP) . The CI had an 18 month s history of back pain that was worsened by lifting. Despite activity limitation, p hysical t herapy (PT) , and medications, the CI failed to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded degenerative disk disease ( DDD) to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “ c hronic low back pain due to lumbar degenerative disc disease , without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations , with characteristic pain on motion” as unfitting, rated 10% referencing Department of Defense Instruction (DoDI) 1332.39 and the US Army Physical Disability Agency (USAPDA) pain policy . The CI made no appeals and he was medically separated.


CI CONTENTION : “I believe the rating should be changed because the back pain that I endure over the years has increased. I also believe that I should be compensated for the disability that I developed in the event of protectin g our country and way of life.”


 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 unfitting chronic LBP condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention either no t 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 20030610
 VA - (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain
 5299-5295 10% Degenerative Disc Disease, Lumbar Spine 5293-5292 20% 20030527
No Additional MEB/PEB Entries
 Other x 1 20030527
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VARD) dated 20030809 ( most proximate to date of separation [DOS]).


ANALYSIS SUMMARY : The Board acknowledges the impairment with which the CI’ s service-connected condition continues to burden him but notes 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 Congres s to the Department of Veterans Affairs, operating under a different set of laws.

The VA Compensation and Pension (C&P) examination dated 27 May 2003 was not in evidence before the Board and could not be located after appropriate inquiries. Further attempts at obtaining the relevant documentation were futile and introduced additional delay in processing the case. However, the applicable VARD adequately described c riteria critical for rating. Members deliberated and agreed that the available evidence was sufficiently probativ e to render a fair assessment ; evidence presumed missing would not materially affect the Board’s final recommendation.

Chronic LBP Condition . There were two 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.

Thoracolumbar ROM
(Degrees)
 MEB ~3.70 Mo. Pre-Sep * VA C&P ~1.93 Mo. Pre-Sep
Flexion (90 Normal)
 90 (greater than 90) 45
Extension (30)
 10 (greater than 10) 20
R Lat Flexion (30)
 30 (greater than 30) 30 (34)
L Lat Flexion (30)
 30 (greater than 30) 30 (38)
R Rotation (30)
 30 (greater than 30) 30 (32)
L Rotation (30)
 30 (greater than 30) 30 (34)
Combined (240)
 - 185
Comment
 Unclear if ROM active or passive; pain with motion was not addressed in exam; Wadells neg ative ; Straight leg raise negative; Motor, sensory, and reflexes intact; mild tenderness to palpation (TTP) centrally L4-5 L5-S1 ROM limited by pain on motion ; no evidence of radiation of pain on movement, muscle spasms, or radiculopathy
§4.71a Rating
5292
 -- 20%
5293
 -- --
5295
 10% 1 0%
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PT invalid font number 31502 staff invalid font number 31502 note invalid font number 31502 d invalid font number 31502 on 24 September 2002 invalid font number 31502 that invalid font number 31502 the CI reported invalid font number 31502 all activities invalid font number 31502 increased invalid font number 31502 back pain invalid font number 31502 ; invalid font number 31502 invalid font number 31502 it recorded invalid font number 31502 physical findings of full ROM with pain in all planes invalid font number 31502 of invalid font number 31502 the lumbar spine with invalid font number 31502 tenderness to palpation ( invalid font number 31502 TTP invalid font number 31502 ) invalid font number 31502 throughout invalid font number 31502 and invalid font number 31502 assessed invalid font number 31502 LBP secondary to early DDD invalid font number 31502 . invalid font number 31502 The CI followed with PT from September 2002 through November 2002. invalid font number 31502 invalid font number 31502 In October 2002, and again in November 2002, invalid font number 31502 the PT invalid font number 31502 staff invalid font number 31502 recommended that the CI follow-up with invalid font number 31502 his Family P invalid font number 31502 ractitioner for M invalid font number 31502 OS invalid font number 31502 M invalid font number 31502 edical invalid font number 31502 R invalid font number 31502 etention invalid font number 31502 B invalid font number 31502 oard (MMRB) invalid font number 31502 consideration invalid font number 31502 , and that the CI’s unit consider invalid font number 31502 an invalid font number 31502 MMRB invalid font number 31502 . invalid font number 31502 invalid font number 31502 On 18 November 2002, t invalid font number 31502 he Family Practitioner invalid font number 31502 invalid font number 31502 ordered a invalid font number 31502 transcutaneous electrical nerve stimulation invalid font number 31502 unit invalid font number 31502 upon a PT recommendation, invalid font number 31502 started the CI on a different NSAID invalid font number 31502 , and also recommended the CI for an MMRB invalid font number 31502 . invalid font number 31502 invalid font number 31502 invalid font number 31502 The CI was evaluated by invalid font number 31502 p invalid font number 31502 ain invalid font number 31502 m invalid font number 31502 anagement invalid font number 31502 on 9 January 2003 invalid font number 31502 who noted invalid font number 31502 physical exam findings of an invalid font number 31502 antalgic gait and invalid font number 31502 decreased forward flexion and diagnosed an acute exacerbation of chronic LBP secondary to DDD invalid font number 31502 after the CI had played a game of basketball invalid font number 31502 . invalid font number 31502 invalid font number 31502 On 23 January 2003, a invalid font number 31502 clinic note invalid font number 31502 sta invalid font number 31502 ted the CI could perform PT and do many functional activities; it suggested the CI should be referred to an MMRB instead of a MEB. invalid font number 31502 invalid font number 31502 The CI was placed on a permanent L3 Profile for invalid font number 31502 LBP invalid font number 31502 invalid font number 31502 on 27 January 2003 invalid font number 31502 with restrictions invalid font number 31502 of invalid font number 31502 no li invalid font number 31502 fting greater than invalid font number 31502 50 invalid font number 31502 pounds, marching limited to invalid font number 31502 12 invalid font number 31502 miles, and invalid font number 31502 no prolonged riding in tracked vehicles (greater than invalid font number 31502 2 invalid font number 31502 hours) invalid font number 31502 . invalid font number 31502 The profile did not however limit the CI’s activities in any other way, and the commander’s endorsement indicated that the CI would do well in another MOS. invalid font number 31502 The invalid font number 31502 c invalid font number 31502 ommander’s invalid font number 31502 s invalid font number 31502 tatement invalid font number 31502 invalid font number 31502 dated invalid font number 31502 invalid font number 31502 31 January 2002 ( invalid font number 31502 which appears to be a typo and probably from January 2003 invalid font number 31502 ) invalid font number 31502 invalid font number 31502 indicated invalid font number 31502 that the CI was invalid font number 31502 unable invalid font number 31502 lift invalid font number 31502 greater invalid font number 31502 than invalid font number 31502 50 invalid font number 31502 pounds or ride in a invalid font number 31502 tactical invalid font number 31502 vehicle for prolonged road marches and this prevented the CI from performing his invalid font number 31502 current invalid font number 31502 MOS duties. invalid font number 31502 invalid font number 31502 But it also recommended that the CI be retained and retrained and noted he could take a PT test, qualify with a weapon, and was a hard worker who could still serve his country based on his current abilities, past performance, and future potential. invalid font number 31502 On 28 March 2003 the CI had an acute exacerbation of back pain after running his APFT, and t invalid font number 31502 he invalid font number 31502 f invalid font number 31502 amily invalid font number 31502 p invalid font number 31502 ractitioner noted that he had decreased ROM and invalid font number 31502 was invalid font number 31502 TTP invalid font number 31502 as a result invalid font number 31502 ; invalid font number 31502 a invalid font number 31502 different NSAID and a muscle relaxant were continue invalid font number 31502 d and the CI was restricted to q invalid font number 31502 uarters for invalid font number 31502 72 invalid font number 31502 hours. The MEB invalid font number 31502 n invalid font number 31502 arrative invalid font number 31502 s invalid font number 31502 ummary (NARSUM) exam invalid font number 31502 dated 4 April 2003, invalid font number 31502 approximately invalid font number 31502 3 invalid font number 31502 months invalid font number 31502 invalid font number 31502 prior to separation invalid font number 31502 , invalid font number 31502 indicated that the CI’s pain worsened when he performed his primary MOS duties because of the requirement of riding around in track vehicles and the repetitive lifting invalid font number 31502 . The CI denied radicular symptoms. invalid font number 31502 The examiner characterized the pain as mild and intermittent in accordance with the invalid font number 31502 American Medical Association invalid font number 31502 pain invalid font number 31502 G invalid font number 31502 rade. The MEB NARSUM physical exam findings are summarized in the chart above invalid font number 31502 . invalid font number 31502 As noted above, the C&P exam invalid font number 31502 of 27 May 2003 invalid font number 31502 is missing from the CPF. The VARD dated invalid font number 31502 9 August invalid font number 31502 2003 documented physical exam invalid font number 31502 findings from this C&P and these invalid font number 31502 invalid font number 31502 are summarized in the chart above. invalid font number 31502

invalid font number 31502 The 2003 VASRD coding and rating standards for the spine were changed to the current §4.71a rating standards on 26 September 2003. The invalid font number 31502 earlier invalid font number 31502 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards 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. This promotes uniformity of its recommendations for different cases from the same period and more conformity across dates of separation, without sacrificing compliance with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time of separation. invalid font number 31502

invalid font number 31502 The Board directs attenti invalid font number 31502 on to its rating recommendation invalid font number 31502 invalid font number 31502 based on the above evidence invalid font number 31502 . invalid font number 31502 invalid font number 31502 The PEB coded the chronic LBP condition analogous to 5295 , invalid font number 31502 invalid font number 31502 l invalid font number 31502 umbosacral strain invalid font number 31502 , invalid font number 31502 rated invalid font number 31502 1 invalid font number 31502 0% invalid font number 31502 invalid font number 31502 for characteristic pain on motion invalid font number 31502 . The VA coded the D invalid font number 31502 DD, invalid font number 31502 l invalid font number 31502 umbar invalid font number 31502 s invalid font number 31502 pine invalid font number 31502 invalid font number 31502 d invalid font number 31502 isease condition 5293 invalid font number 31502 , invalid font number 31502 i invalid font number 31502 ntervertebral disc syndrome invalid font number 31502 , invalid font number 31502 with 5292 invalid font number 31502 , invalid font number 31502 rated invalid font number 31502 2 invalid font number 31502 0 invalid font number 31502 % based invalid font number 31502 on moderate limitation of motion invalid font number 31502 . Both the PEB and VA used invalid font number 31502 the invalid font number 31502 spine rules in effect at the time of separation invalid font number 31502 to rate the LBP condition invalid font number 31502 ; these criteria changed invalid font number 31502 2 months invalid font number 31502 after separation invalid font number 31502 , as noted above invalid font number 31502 . The MEB NARSUM exam contain s ROM measurements and forward flexion is recorded a s “ full forward flexion to greater than 90 ° ; ” however , it is not clear if this was active or passive motion or if a goniometer was used and the examination does not discuss the presence or absence of painful motion or muscle spasm. The C&P examination documented flexion limited to 45 degree and ROM limited by pain on motion ; this could be a possible w orsening of the LBP condition. While this examination could support a finding of moderate limitation of motion and a 20% rating if today’s VASRD were applied, the Board is required by its DoDI 6040.44 guidance as noted above to use the VASRD in effect at the time of separation. The invalid font number 31502 Board invalid font number 31502 majority invalid font number 31502 concluded invalid font number 31502 that invalid font number 31502 although invalid font number 31502 the C&P examination w invalid font number 31502 as invalid font number 31502 closer to invalid font number 31502 and prior to invalid font number 31502 the date of invalid font number 31502 separation than the MEB NARSUM, invalid font number 31502 it did not have invalid font number 31502 higher probative value invalid font number 31502 because the two exams were less than 2 months apart and there was no evidence of any injury, event or other invalid font number 31502 evidence invalid font number 31502 to support any speculation about invalid font number 31502 possible invalid font number 31502 worsening invalid font number 31502 . invalid font number 31502 The invalid font number 31502 Board invalid font number 31502 majority invalid font number 31502 determined that the overall disability picture invalid font number 31502 did not support a 20% disability rating invalid font number 31502 in view of invalid font number 31502 the invalid font number 31502 absence of robust invalid font number 31502 limitations invalid font number 31502 on the CI’s permanent profile invalid font number 31502 , the recommendations for retention and reclassification, invalid font number 31502 and the totality of invalid font number 31502 clinical evidence in invalid font number 31502 the STR. invalid font number 31502 While the invalid font number 31502 CI invalid font number 31502 had intervertebral disc syndrome, invalid font number 31502 and although the record included one episode of being restricted to invalid font number 31502 q invalid font number 31502 uarters for invalid font number 31502 72 invalid font number 31502 hours invalid font number 31502 , this d invalid font number 31502 oes invalid font number 31502 not meet the criteria for invalid font number 31502 the minimum rating criteria for invalid font number 31502 incapacitating episodes invalid font number 31502 . After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (R easonable doubt ) , the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the c hronic LBP condition. invalid font number 31502


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 the USAPDA pain policy and DoDI 1332.39 for rating the c hronic LBP was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the c hronic LBP condition, the Board, by a vote of 2:1, recommends no change in the PEB adjudication. The single voter for dissent who recommended adopting the VA rating of 20% coded 5293-5292 IAW VASRD §4.71a, submitted the addended minority opinion. 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 separat ion determination, as follows:
UNFITTING CONDITION
 VASRD CODE RATING
Chronic L ow B ack P ain
529 9 -529 5 1 0%
COMBINED
 1 0%
invalid font number 31502

The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 120605 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record




Physical Disability Board of Review


MINORITY OPINION :

Although a Board majority determined the C&P examination did not have a greater probative value as compared to the MEB NARSUM examination, no valid reason was articulated. The VA examination was completed closer to the date of separation than the MEB NARSUM examination and was completed prior to the date of separation. Therefore, this examination should be given greater probative value unless there is some reason to doubt the validity of this examination and none was identified . While the actual C&P examination was unavailable for Board review, the VARD clearly describes the examination findings described above and notes that the level of limitation noted supports a finding of moderate limitation of motion with an evaluation of 20%. 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. This promotes uniformity of its recommendations for different cases from the same period and more conformity across dates of separation, without sacrificing compliance with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time of separation. The VASRD in effect at the time did not include specific ROM measurements for rating the spine but if today’s VASR D were applied; the flexion limited to 45 degrees would result in a 20% rating.

The VARD includes a detailed description of the C&P examination and does not mention any Waddell signs, any inconsistencies, or any reason to doubt the examination findings. The VA requires both active and passive ROM assessments with a goniometer, with particular attention to painful motion, but bases disability ratings on active ROM measurements . While ROM measurements were not used for rating the spine in 2003, they were used to rate other joints and it can be assumed that the ROM measurements reported were active ROM measured with a goniometer . While the MEB NARSUM examination has less probative value for rating because of the date it was completed , there also some reasons to doubt the MEB NARSUM examination in this case. The MEB NARSUM examination was completed on 4 April 2003 and it stated, “There was full forward flexion to greater than 90° ” but it does not give an actual measurement. In fact, all measurements simply state they were greater than a specific number without specifying the actual measurement. Therefore, it is not clear if any measurements were made using a goniometer or if the measurements were active or passive. Additionally outpatient visit notes document decreased ROM as late as 28 March 2003, a week prior to the MEB NARSUM examination. Although the examiner reported three positive Waddell signs, he did not specify which signs were positive and he included 72 hours quarters as part of the treatment. This implies at least moderate functional limitation. It is not clear if the same physician performed both examinations. A previous note from 9 January 2003 with a different physician also documents decreased forward flexion with the addition of an antalgic gait after playing basketball, and this indicates a moderate level of functional limitation.


RECOMMENDATION : This Board member, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic Low Back Pain
 529 3 -529 2 2 0%
COMBINED
 2 0%


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130018505 (PD201200590)


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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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