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AF | PDBR | CY2012 | PD2012 00964
Original file (PD2012 00964.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1200964
BRANCH OF SERVICE: Army  BOARD DATE: 20130703
SEPARATION DATE: 20040220


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (55B/Ammunition Specialist) medically separated for a back condition. The CI first experienced back pain in 2001 after lifting heavy objects; this condition exacerbated after two motor vehicle accidents (MVA) later that same year. Despite conservative treatment including medication, therapy, and chiropractic treatment the back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic low back pain (LBP) to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition (hypertension, listed as not disqualifying) for PEB adjudication. The PEB adjudicated chronic LBP as unfitting and rated 10%. The remaining condition, hypertension, was determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “Increased pain level since discharge, even after surgery. Pain is constant and restricts daily activity. Pain is in lower back radiating down left leg, w/ numbness at (unreadable word).”


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 is addressed below. 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.


 RATING COMPARISON :

Service PEB – Dated 20031211
 VA* - (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain… 5243 10% Degenerative Disk Disease… 5243 10% 20031230
Hypertension Not Unfitting Hypertension 7107 0% 20031230
No Additional MEB/PEB Entries
 Other x 4 20031230
Combined: 10%
 Combined: 10%
* Derived from VA Rating Decision (VARD) dated 20040318 (most proximate to date of separation)


ANALYSIS SUMMARY: The Board acknowledges the CI’s concern regarding the significant impairment with which his service-connected condition continues to burden him. The Disability Evaluation System, however, has neither the role nor the authority to compensate members for increased severity or complications of conditions for which they were separated. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.
Chronic Low Back Pain Condition. Six months after active duty date, the CI was seen in the emergency room for left back pain radiating to the left thigh after heavy lifting the day prior. Two months after that, the CI was involved in a MVA, and 3 weeks later, another MVA. X-rays performed on 29 September 2003 for MEB revealed a stable minimal thoracic spine curvature, and stable T9 compression fracture. This was compared to X-rays taken on 23 October 2001 which revealed lumbar stable mild convex leftward mid lumbar curvature, moderate focal degenerative disk narrowing between the partially lumbarized S1-S2, congenitally short pedicles, articular facet degenerative changes and right S1-S2 pseudo-articulation degenerative changes. Magnetic resonance imaging study of the lumbar spine on 21 November 2002 had revealed degenerative disc disease (DDD) most significant at the L5/S1 level with moderate left far central disc protrusion that moderately narrowed the left foramen, and may have affected the left L5 nerve root. His commander’s statement noted that due to the CI’s DDD and chronic LBP the CI was physically incapable of performing his MOS and assigned an alternate MOS with frequent breaks and minimal physical exertion. His profile was for DDD of the lumbar spine and chronic back pain, permanent lower extremities level 3, no running, jumping or rucking, only walk, bicycle and swim at own pace and distance, no backpack, no marching more than 3 miles, no lifting more than 25 pounds, pushups and walking physical fitness tests only. The MEB narrative summary, on 17 October 2003, 4 months prior to separation, notes that the CI reported constant 3/10 LBP. The pain worsened to 8/10 with standing, walking, or sitting for periods of time, and 10/10 with impact activities, bending, and lifting. He had no improvement with rest, medical treatment, physical therapy, or chiropractic treatment. The CI was unable to perform his MOS duties, he could not run, jump, march, rucksack, or lift over 25 pounds. The physical exam cited was performed on 29 September 2003 showed a minimal left curvature in the mid to lower thoracic spine, mild tenderness of the left mid-para thoracic muscles and left sacroiliac joint area, no masses, tenderness, no midline lumbar tenderness, negative straight leg raise test, normal deep tendon reflexes, normal strength and normal sensation. Range-of-motion (ROM) was flexion 90 degrees (normal 90), extension 30 degrees (normal 30), and combined 240 degrees (normal 240).

At the VA Compensation and Pension exam performed on 30 December 2003, 2 months prior to separation, summarized from the VARD because the actual examination was not in the record, the CI denied persistent radiating pain, or interference with daily activities with ordinary lifting or carrying. Physical examination found normal curvature of the spine, no muscle spasm, negative straight leg raising tests, normal motor, normal sensory and normal deep tendon reflexes of both lower extremities. ROM was flexion 95 degrees (normal 90), extension 35 degrees (normal 30), and combined 240 degrees (normal 240).

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and the VA both used Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic code 5243 (intervertebral disk syndrome) for 10% ratings. The Board found no evidence in the available service treatment record of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months for a higher 20% rating. The Board also considered the general rating formula for diseases and injuries of the spine for a possible higher adjudication. The Board notes that both the MEB and VA exam cited in the VARD were well documented, and compliant with VASRD §4.46 (accurate measurement) and similar in terms of ratable data and therefore the Board assigns both exams equal probative value. There was no evidence for adjudication in the CI’s favor, such as: 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, or abnormal kyphosis, for a 20% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.10 (functional impairment), and §4.40 (functional loss) the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lower back pain 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. 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 LBP 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Low Back Pain 5243 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120623, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review


 SFMR-RB                                                                         


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

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130015311 (PD201200964)

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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