Search Decisions

Decision Text

AF | PDBR | CY2012 | PD2012 01045
Original file (PD2012 01045.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1201045        
BRANCH OF SERVICE: Army         BOARD DATE: 20140130
SEPARATION DATE: 20030905                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (92G/Food Service) medically separated for chronic low back pain (LBP) with lumbar degenerative disc disease. His LBP started in January 2002 after a bad parachute landing fall. The CI was treated conservatively, but his LBP was refractory to care. The back pain condition 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 underwent a Medical Evaluation Board (MEB). The back pain condition was found medically unacceptable and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB found the chronic low back pain unfitting and rated it 10%, referencing Department of Defense Instruction (DoDI) 1332.39. The CI demanded a formal hearing, but after further consideration, concurred with the PEB findings and was medically separated.


CI CONTENTION: “My lower back has gotten worse, also was diagnosed with major depressive disorder do to my service connected disability.”


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 low back condition is addressed below. The requested major depressive disorder was not identified by the PEB; therefore, is not within the DoDI 6040.44 defined purview of the Board. Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.


RATING COMPARISON :

Service IPEB – dated 20030701
 VA – (some VA documents were not available to the Board)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5295 10% Degenerative Disc Disease (DDD) 5292 10%*
Radiculopathy, Left Lower Extremity 8520 10%
No Additional MEB/PEB Entries
Rating: 10%
 Combined: 20%
* VA Rating for Lumbar DDD was later increased by a subsequent VA Rating Decision (VA R D)


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the fact that his lower back has gotten worse and that he was diagnosed with major depressive disorder. Clearly, these conditions have been a major burden and have had a significant impact on his quality-of-life. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate service members for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs. The Board uses VA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. While the DES considers all significant medical conditions, compensation can only be offered for those conditions that cut short a service member’s career, and then only to the degree of severity present at the time of separation. The VA, however, is empowered to compensate for service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Low Back Pain. In January 2002, the CI injured his lower back in a parachute landing fall. He was treated with physical therapy (PT), rest, non-steroidal anti-inflammatories, narcotics and chiropractic. In spite of treatment, the LBP persisted. In April 2003, he was seen by a neurosurgeon at Brooke Army Medical Center. At that examination, range-of-motion (ROM) testing showed forward flexion of 70 degrees and extension of 30 degrees. The examiner’s diagnostic impression was lumbar DDD, with lumbosacral myofascial dysfunction. The CI’s primary care provider was recommended to initiate MEB. In the June 2003 MEB narrative summary, the examiner noted that the CI was in no acute distress. Physical examination of the back showed full ROM. There was some mild tenderness to palpation of L4-L5 centrally, but no significant spasm or paraspinous tenderness. Straight leg raise was negative bilaterally and neurological exam of the legs (motor and sensory) was normal. As noted above, the CI was medically separated from service in September 2003. On 22 February 2005, more than 17 months after separation, the CI had a VA Compensation and Pension exam of his lower back. ROM testing showed forward flexion of 24 degrees and extension of 8 degrees. Spinal motion was additionally limited by pain after repetitive use.

The Board directs attention to its rating recommendation based on the above evidence. The VA Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of the CI’s separation, was changed on 26 September 2003. The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment. IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation from service.

The Board determined that the June 2003 MEB evaluation was performed just 3 months before separation, and therefore had greater probative value than the C&P exam which was done 17 months after separation. At that June 2003 MEB exam, the CI had full ROM, with no significant spasm or paraspinous tenderness. After a thorough review of the evidence in the service treatment record (STR), the Board determined that IAW VASRD §4.71a, the CI’s LBP condition was best described as “slight.” The STR did not show sufficient evidence to support classifying the LBP condition as “moderate” or “severe.” The CI’s LBP condition did indeed get worse following separation, but the Board must adjudicate based on the degree of severity present at the time of separation. After due deliberation, the Board determined that a separation disability rating of 10% was warranted. The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition. The other VASRD codes that were considered did not result in a higher rating, since the STR did not show sufficient evidence of a disabling lumbar spine abnormality which would justify a rating higher than 10%. The Board also considered the matter of neuropathy. After reviewing all the information in the STR, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties. Therefore, no unfitting neuropathy was present at separation from service. 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.

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 was operant in this case and the LBP condition was adjudicated independently of that instruction by the Board. 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
Chronic low back pain, with Lumbar DDD 5299-5295 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120627, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record


XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20140005181 (PD201201045)

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)

Similar Decisions

  • AF | PDBR | CY2013 | PD2013 00199

    Original file (PD2013 00199.rtf) Auto-classification: Approved

    The Board carefully reviewed all available evidence and directs attention to its rating recommendation.The VA Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were changed in September 2003. After a thorough review of the evidence in the service treatment record (STR) and based primarily on the November 2002 MEB exam, the Board determined that IAW VASRD §4.71a, the CI’s back condition was best...

  • AF | PDBR | CY2013 | PD2013 00462

    Original file (PD2013 00462.rtf) Auto-classification: Approved

    The Board noted the first VA C&P examination was well outside the 12-month time frame specified in DoDI 6040.44 regarding VA evaluations for Board consideration to have significant probative value in the Board’s rating recommendation, and the CI did indicate that his pain was “worse” further suggesting it did not reflect his condition at separation. Mental Health Review Contended MH Conditions .Although the CI elaborated no contention related to any MH condition, it is noted that he...

  • AF | PDBR | CY2013 | PD2013 00409

    Original file (PD2013 00409.rtf) Auto-classification: Approved

    The chronic back pain and chronic neck pain conditions, characterized as “chronic neck pain and chronic back pain, with degenerative disc disease” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of his MH condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability...

  • AF | PDBR | CY2012 | PD2012 00808

    Original file (PD2012 00808.rtf) Auto-classification: Approved

    The MEB forwarded chronic back pain and chronic neck pain as medically unacceptablefor Physical Evaluation Board (PEB) adjudication IAW AR 40-501.The PEB adjudicated the “chronic pain, neck and LBP, without neurologic abnormality” as unfitting, rated together as 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy. In the matter of the “unbundled” chronic neck pain condition, the Board unanimously agrees it was not separately unfitting and that it cannot...

  • AF | PDBR | CY2013 | PD 2013 01186

    Original file (PD 2013 01186.rtf) Auto-classification: Approved

    Additionally, members agreed that the chronic low back pain and left shoulder pain conditions, as isolated conditions, would have rendered the CI incapable of continued service within his MOS and therefore each is separately unfitting and merits a separate rating. Physical Disability Board of Review Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical...

  • AF | PDBR | CY2012 | PD2012 01758

    Original file (PD2012 01758.rtf) Auto-classification: Denied

    Consequently, the Board need not apply a 50% minimum Temporary Disability Retired List rating in this case.The service treatment record(STR) reported the onset of “situational depression” in 2000, related to weight gain secondary to LBP, and duty repercussions; outpatient notes described depressed mood, normal thought process, no psychotic symptoms, and no evidence of dangerousness.At the psychiatric MEB exam in July 2001 (14 months prior to separation), the CI endorsed symptoms of loss of...

  • AF | PDBR | CY2013 | PD-2013-01840

    Original file (PD-2013-01840.rtf) Auto-classification: Denied

    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.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 low back pain condition, the Board unanimously recommends a disability...

  • AF | PDBR | CY2014 | PD-2014-01985

    Original file (PD-2014-01985.rtf) Auto-classification: Denied

    According to the VASRD rules for rating the spine in effect at the time of separation thoracic and lumbar spine conditions coded IAW §4.71a are provided a single disability rating and thus the thoracic DDD and the lumbago (listed by the PEB as separate conditions) are subsumed in the §4.71a rating that follows. Since the disability due only to the left foot cannot be isolated by the clinical evidence or from the fitness implications of the bilateral condition, the Board consensus was that...

  • AF | PDBR | CY2013 | PD2013 00035

    Original file (PD2013 00035.rtf) Auto-classification: Denied

    Low back pain (LBP) . IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation from service.Based on a thorough review of the evidence in the service treatment record (STR), the Board determined that IAW VASRD §4.71a, the CI’s LBP condition was best described as “slight.” There was insufficient evidence to support classifying the condition as “moderate” or “severe.”After due deliberation, the Board determined that a...

  • AF | PDBR | CY2012 | PD2012 01054

    Original file (PD2012 01054.rtf) Auto-classification: Denied

    The Board’s authority as defined in DoDI 6044.40 resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. The Board concluded therefore that the Grave’s disease condition could not be recommended for additional disability rating. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record