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AF | PDBR | CY2012 | PD2012 00936
Original file (PD2012 00936.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD12 00 936
BRANCH OF SERVICE: Army   BOARD DATE: 201 4 0325
Separation Date: 20020321


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was a drilling National Guard SGT/E-5 (63W/Wheeled Vehicle Mechanic) medically separated for back condition. The back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “low back pain (LBP) with left sciatica and osteocondensans ilei” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic LPB without significant neurologic abnormality” as unfitting rated 10% citing criteria from DoDI 1332.39 and AR 635-40. The CI appealed to the Formal PEB (FPEB) who increased the rating to 20% based on “documented chronic paravertebral muscle spasms.” The CI non-concurred with the FPEB, but did not submit a statement of rebuttal. The case was reviewed by the US Army Physical Disability Agency who upheld the FPEB’s decision and the CI was separated with that disability rating.


CI CONTENTION : The CI writes: “Because it has been twelve years since injury and it’s not any better nor is it going to get any better, eventually worse.”


 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 LBP condition is addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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.

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RATING COMPARISON :
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Service FPEB – Dated 20020111
 VA - (6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5295 20% Lumbar Disc Disease s/p L4-L5 Laminectomy and Discectomy 5293* 60%* 20020926
No Additional MEB/PEB Entries
 Other x0 20020906
Combined: 20%
 Combined: 60%
*C ode changed to 5293 and rating increased to 60% by Decision Review Officer (DRO) VARD dated 20030812 effective 20020322 , the day after separation . The original VARD dated 20021107 coded the LPB as 5295 with a 20% rating. Both VARDs used the same VA exam.


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, operating under a different set of laws. The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Chronic LBP Condition . In April 2000, the CI developed LBP after assisting with lifting a 300 pound pinion gear as he got above the gea r and bent over lifting it. A Magnetic Resonance Imaging demonstrated some mild degenerative changes at L4-5 level bilaterally. The CI was evaluated by a civilian n eurologist who noted significant problems with spasm and pain which radiated down both legs. The physical exam findings were normal motor function, normal reflexes and pain with all range - of - motion ( ROM ) . The CI continued to have documentation of decreased spin al curvature and limited ROM as documented by p hysical t herapy (PT) treatment notes. A civilian o rthopedist noted subjective numbness that radiated down the back of his leg to the heel. Physical exam findings were a n antalgic gait, favoring the entire left side; tenderness over the hip and most intense tenderness over the s acro iliac (SI) joint with spasm in the low back . There were normal reflexes and straight leg raise with no motor weakness. A b one scan performed was normal. A computed tomography scan demonstrated a tear in the L5-S1 disc annulus . The CI was evaluated by a civilian n eurosurgeon who noted that the CI had failed conservative measures including lumbar epidural injections, facet injections, non-ste roidal anti-inflammatory drugs and PT. The physical findings showed back flexion to 75 degrees with no motor deficits and normal reflexes. The neurosurgeon could not confirm an active radiculopathy. Two and a half months prior to separation, an evaluation by a civilian physician contained the following remarks:

“At this time he remains involved with physical therapy. He will have intermittent setbacks, but also some successes. He is involved with a home exercise program and he is tolerating up to 30 minutes of exercise at a time. He still has pain towards the end of the day and with some activities. He's not yet able to sit for more than two hours. His mornings are reasonably comfortable but he does see worsening through his day.”

 T he CI was given a permanent L3 p rofile for chronic LBP with an additional lifting restriction. An undated c ommander’s s tatement recommended retention until it was proved that the CI’s back injury would not heal as he had met every demand placed upon him (the Board considered if this implied keeping the CI on active status until his back pain condition was stable) . The MEB n arrative s ummary (NARSUM) exam completed approximately 5 1/2 months prior to separation documented chronic , sharp pain rated at 6/10 over the left SI area that referred laterally deep over the buttock and caused tingling over the lateral left calf. The physical exam findings were: stiff stance and gait; mild left paravertebral spasm, mildly decreased lumbar lordosi s; and negative straight leg raise . There were no ROM measurements due to “he is in some pain . ” Evaluation and treatment of the CI’s LBP continued after the NARSUM was completed. A discogram performed 3 weeks prior to separation showed a full thickness tear in the L4-5 disc annulus with 0/10 pain upon injection of the dye . Almost a month after separation, the CI underwent back surgery which consisted of a poster ior lateral L4-5 fusion with insertion of a pedicle screw, an allograft and a laminotomy with decompressions of L4-5. The section of the operati ve report that contained the indications for surgery documents that the discogram “reproduced” the CI’s back pain symptoms. The VA Compensation and Pension (C&P) exam performed 6 months after separation indicated that the CI had constant pain of 4/10 . His pain radiated and escalated to 8/10 with walking, lasting 1 to 2 days three to four times a week. He wore a back brace that gave him “a lot of relief” but he had significant spasms when he removed it . The C&P physical exam findings revealed a slow, stiff gait and some loss of the normal lumbar lordosis. Back ROM testing revealed a flexion of 31 degrees (90 degrees normal) with palpable left paraspinal spasm and pain radiating into the left buttock and thigh. There was painful motion and his deep tendon reflexes were normal.

The Board directs attention to its rating recommendation based on the above evidence. The FPEB applied the analogous VA Schedule for Rating Disabilities (VASRD) code 5299-5295 (lumbosacral strain) and rated it 20% citing “…chronic paravertebral muscle spasms on repeated examinations.” Initially, the VA also applied VASRD code 5295 and rated it 20%. However, that decision was changed by a DRO to code 5293 (intervertebral disc syndrome) and rated at 60% for “pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief” effective the day after separation. The Board notes that the VA C&P exam and DRO decision were performed after separation as well as the extensive surgical procedure on the CI’s lumbar spine; thus reducing its probative value in reflecting his disability at the time of separation. The Board reviewed the evidence for indication that the 5293 code could be applied to its rating recommendation. Prior to separation, the CI had negative straight leg tests, normal reflexes, no pain with dye injection during the discogram (this conflicted with the documentation contained in the operation report) and a consulting neurosurgeon could not confirm a radiculopathy. The MEB noted that the CI had chronic LBP with left sciatica while the FPEB cited “…without significant neurologic abnormality.” The physician’s report 2 months prior to separation documented that the CI was involved with PT and had some “intermittent setbacks, but also some successes,” he was involved with a home exercise program and was tolerating up to 30 minutes of exercise at a time. He still had pain towards the end of the day, with some activities, he was not able to sit for more than 2 hours and his mornings were “reasonably comfortable.” The intervertebral disc syndrome rating criteria are copied below:

5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief...........60
Severe; recurring attacks, with intermittent relief..........................40
Moderate; recurring attacks..........................................................20
Mild..............................................................................................10
Postoperative, cured.......................................................................0

Based on that evidence, Board members agree that the intervertebral disc syndrome code, if applied to the CI’s pre-separation disability picture, would be rated at the “moderate”, 20% level due to his lack of neurologic findings and response to PT and would be of no benefit to the CI. The other 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation, must be applied to the Board’s recommendation IAW DoDI 6040.44. These earlier criteria were subject to the rater’s opinion regarding degree of severity, as opposed to the more objective current standards with quantifiable rating thresholds grounded in ROM measurements. The two other appropriate codes in this case are copied below for the reader’s convenience:

5292 Spine, limitation of motion of, lumbar:
Severe........................... ............................. 40
Moderate............................................ ....... 20
Slight........................... ............................... 10

5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.................... ................................... .. ... ....... 4 0
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in sta nding position ……………………………………………………… . . .. 20
With characteristic pain on motion... .................. 10
With slight subjective symptoms only.................. 0

The Board first considered application of the 5292 code and judged that the CI’s limitation of lumbar motion was “moderate , ” 20%, as there was a flexion of 75 degrees documented within 9 months of separation along with documentation of “some success” in PT, tolerating 30 minutes of exercise at a time with “reasonably comfortable” mornings. Next, the Board considered code 5295 (also applied by the FPEB) for its rating recommendation. The CI had muscle spasm and pain with motion as required for the 20% rating and did not demonstrate findings consistent with the “severe” rating criteria. Application of either code would result in a 20% rating at the time of separation. 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 LBP condition.


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 c hronic LBP condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the chronic LBP condition, 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 .


The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 120613 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record








                          
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review


SAMR-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 XXXXXXXXXXXXXXXXXX, AR20140018959 (PD201200936)


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 of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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