Search Decisions

Decision Text

AF | PDBR | CY2012 | PD2012 01278
Original file (PD2012 01278.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD1201278
BRANCH OF SERVICE: Army  BOARD DATE: 20131011
SEPARATION DATE: 20030425


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (19D/Cavalry Scout) medically separated for a chronic low back condition. He developed low back pain (LBP) after physical training in 1996, which progressed and subsequently was diagnosed as mechanical LBP with degenerative disc disease (DDD). The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB); which forwarded “chronic back pain refractory to conservative treatment” to the Physical Evaluation Board (PEB) as not meeting retention standards IAW AR 40-501. The PEB adjudicated “chronic low back pain without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion” as unfitting, rated 10% with application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40, appendix B-39. The CI made no appeals and was medically separated.


CI CONTENTION: “When I got out of the Army I received a medical severance pay of $32,832.00, which I am paying back to the VA at this time. I should have been retired and for then I would not be paying the VA back on severance pay I received. I don’t understand why the Army gave me severance pay and the VA wants it back. What was my benefit? I am now short on my VA Disability checks because of my injuries in the military. If the Board decided to give me a higher disability will I have to pay it back to the Veteran’s Administration?”


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; 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.


RATING COMPARISON:

Service IPEB – Dated 20030325 VA - (20031021- 6 mos. Post-Separation)
Condition Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5295 10% Degenerative Joint Disease L2-3, Lumbar Spine and Thoracic Spine 5242 (10%)
(*40%)		 20031021
No Additional MEB/PEB Entries Other x 3 20031021
Combined: 10% Combined: 50%
Derived from VA Decision Review Officer Decision ( DROD ) dated 200 40115.
* The original VARD rated the CI’s condition using the STR only. The CI then underwent C&P General and Spine exams and his back condition rating was increased from 10% to 40% effective September 26, 200 3.
ANALYSIS SUMMARY: The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to evidence after separation. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation. Evidence after separation is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic Low Back Pain Condition. The 2003 Veterans Affairs 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 updated 23 September 2002 for code 5293 (incapacitating episodes), and then changed to the current §4.71a rating standards on 26 September 2003. The older VASRD standards for rating based on range-of-motion (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. The VASRD normal ROM values were not in effect prior to 26 September 2003, and are for the combined thoracolumbar spine segment, whereas the older spine criteria considered the thoracic and lumbar spine segments separately. For the reader’s convenience, the 2003 rating codes under discussion in this case are excerpted here.

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

5293 Intervertebral disc syndrome:
With incapacitating episodes having a total duration
…of at least six weeks during the past 12 months ..............................................60
…of at least four weeks but less than six weeks during the past 12 months .........40
…of at least two weeks but less than four weeks during the past 12 months.......20
…of at least one week but less than two weeks during the past 12 months ........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............................................40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.....................................................20
With characteristic pain on motion...........10
With slight subjective symptoms only........0

The CI reported no specific direct history of back trauma. His LBP developed in 1996 associated with fitness training. Despite medication, physical therapy and profiling, his back symptoms intermittently continued and worsened. Initially normal, lumbar spine X-rays evolved into multi-level DDD. He was not a surgical candidate; and, an orthopedic exam in January 2003 noted mechanical LBP without neurovascular involvement. The service treatment record (STR) had numerous encounters that noted full ROM; the majority of which were without pain. Additionally, there were inconsistencies in regards to lower extremity radicular pain presence. STR evidence ranged from “denies radicular signs and symptoms,” “radicular pain into left lower leg” and “radiates into bilateral thighs.” At the MEB examination 2 months prior to separation, the CI reported constant 6 out of 10 LBP and noted difficulty with running, jumping, marching, performing push-ups or physical activity in general to include rucking, and performing his job. On examination, the CI had left lumbar tenderness without spasms. There was no edema, erythema, ecchymosis or abnormal contour. Neurovascular, sensory and strength parameters were normal to the back and extremities. The ROM documentation was absent. At the VA Compensation and Pension (C&P) general exam, 3 days after separation, the CI reported sharp, intermittent, 8 out of 10 LBP aggravated by sitting greater than 20 minutes, standing greater than 60 minutes and lifting; each lasting up to 2 hours per episode. The examiner specifically noted, “…does not have numbness or tingling,” “The lower part of the back pain does not radiate.” and “He intermittently needs someone to help pull his arms to help him sit up in the bed.” The C&P exam noted normal gait, posture, stance and coordination. Forward flexion was decreased at 85 degrees (normal 90 degrees), with all other ROM at or above historic normal values. There was no atrophy or spasm present and strength testing and neuro-sensory exam was normal. Painful motion was present after repetitive motion of the lumbar spine with extension. There were no periods of incapacitation. A spine specific C&P examination was performed 6 months after separation (the evidence formed the basis for increasing the rating to 40%). The CI reported a sharp, constant, moderately severe 8 out of 10 LBP that “radiates to his left hip.” Pain was described as excruciating after walking 15-20 feet. “He normally uses a cane in the right hand” and “…is sitting in a wheelchair for the first time today.” He reported needing assistance getting in and out of bed, getting up from chairs and balance assistance when showering. He reported no recreational activities due to back pain. The physical examination revealed a slow, cane-assisted walk from wheelchair to the exam table. The spine was symmetrical, non-tender and without spasm. Thoracolumbar ROM was globally decreased with painful motion. There was no atrophy or weakness present and no incapacitation episodes documented were documented. The diagnosis included lumbar degenerative joint disease at levels L2 and L3. The lumbar 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)		 Ortho Exam (STR) ~3.5 Mo. Pre-Sep
20030109
 NARSUM ~2.5
Mo. Pre-Sep
20030213
 VA C&P Gen ~3 Days Post-Sep
(20030428)
 VA C&P Spine ~6 Mo.
Post-Sep
(20031021)
Flexion (90 Normal) Full active ROM No measured ROM 85 25
Extension (30) 30 (25) 10
R Lat Flexion (30) 35 25
L Lat Flexion (30) 35 25
R Rotation (30) 35 20
L Rotation (30) 35 20
Comment (+) painful motion
normal gait		 para-spinal tenderness (+) Deluca (extension)
(+) painful motion		 (+) painful motion
§4.71a Rating 10% NR 10% 20% or 40%

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the back condition utilizing the 2002 VASRD rating rules as 5299-5295, analogous to lumbosacral strain and citing DoDI 1332.39 and AR 635-40. The VA rating of 40% was under the current VASRD §4.71a rating code of 5242 (degenerative arthritis of the spine) which was not in effect at the time of the CI’s date of separation. The spine specific VA examination (6 months after separation) demonstrated significantly worse symptoms and ROMs than the general VA exam (near separation) and service exams within the STR. There is a clear disparity that exists between these examinations, which may have significant implications regarding the Board's rating recommendation. The Board carefully deliberated the probative value assignment to these conflicting evaluations, and carefully reviewed the STR for other corroborating evidence from the period preceding separation. Nearly all STR’s reflected full spinal ROM throughout the period of 2000-2003. A single note simply stated “decreased ROM” without recorded measurements prior to 2000; otherwise, the first recorded evidence of limited ROM was the initial VA examination 3 days after separation. In determining probative value, the Board acknowledged the poor ROM values based on subjective pain responses as recorded by the VA examiner 6 months after separation, which were not consistent with the objective absence of back spasm, tenderness or postural abnormalities documented in the same examination. Additionally, the CI reported no interim history of injury, surgery or other aggravation of his back condition. While ROM limitations may have progressed over this short time, there is no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA’s 6-month measurements after separation. Absent the NARSUM ROM documentation, the Board thus deliberated between the two charted exams (3 months prior to and 3 days after separation) as to their probative value. Upon deliberation, the Board agreed to assign relatively equal probative value to the evidence from the Ortho exam as regards to its permanent rating recommendation. This exam was more consistent with other outpatient notes, and more reflective of the anticipated severity suggested by the clinical pathology and the initial VA exam being supported by close temporal alignment to separation. In addition, the coding and rating standards in effect at the CI’s separation were specific to the lumbar ROM as depicted in the agreed upon VA probative exam.

The PEB analogously coded the back as 5295 (lumbosacral strain) and rated it 10% under previous spine rules that changed on 23 September 2002 (prior to the CI’s date of separation). The VA rating decision initially granting 10% (citing painful motion) applied under the current VASRD §4.71a rating code of 5242 (degenerative arthritis) which was not in effect at the time of the CI’s date of separation. Utilizing the 5295 (lumbosacral strain) code, both probative exams clearly met the 10% criteria with painful motion. Neither exam rose to the level of 20% rating due to the absence of muscle spasms or gait abnormality. The ROM examinations were not compensable above the 10% level under code 5292 or with consideration of VASRD §4.59 (painful motion). The Board considered code 5293 (intervertebral disc syndrome) under the 2003 VASRD, but there was insufficient evidence of “incapacitating episodes having a total duration of at least a week but less than 2 weeks during the past 12 months.” After due deliberation, considering the totality of the evidence, which favors a 10% rating at the time of the CI’s date of separation, the Board concluded that there was insufficient cause to recommend a change in the IPEB 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 the DoDI 1332.39 for rating the back condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the low back condition and IAW 2003 VASRD, 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 5299-5295 10%
COMBINED 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120717, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / XXXXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXX, AR20130021923 (PD201201278)


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                                                  XXXXXXXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

Similar Decisions

  • AF | PDBR | CY2012 | PD2012 01966

    Original file (PD2012 01966.rtf) Auto-classification: Approved

    MINORITY OPINION This Board member recommends a 40% rating for severe limitation of motion of the lumbar spine based on the pain limited flexion of 10 degrees at the MEB NARSUM exam and pain limited flexion of 30 degrees at the VA C&P exam. The MEB NARSUM exam documented lumbar flexion that was limited to only 10 degrees by pain, which indicates a severe limitation of motion. Although the VA C&P examination was after separation, it was actually closer in time to the date of separation, and...

  • AF | PDBR | CY2012 | PD2012 01929

    Original file (PD2012 01929.rtf) Auto-classification: Approved

    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. Physical Disability Board of Review I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.

  • AF | PDBR | CY2012 | PD2012-00783

    Original file (PD2012-00783.pdf) Auto-classification: Denied

    RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW BRANCH OF SERVICE: ARMY SEPARATION DATE: 20030126 NAME: XXXXXXXXXXXXXX CASE NUMBER: PD1200783 BOARD DATE: 20130130 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-4 (13B10/Artillery), medically separated for mechanical low back pain (LBP) secondary to back strain. The commander’s statement noted that the CI’s condition left him “incapable of...

  • AF | PDBR | CY2013 | PD 2013 00937

    Original file (PD 2013 00937.rtf) Auto-classification: Approved

    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 VA Schedule for Rating Disabilities (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. Neck Pain Condition . The single voter for dissent did not elect to submit a...

  • 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 | CY2012 | PD2012-00570

    Original file (PD2012-00570.pdf) Auto-classification: Denied

    Three months prior to separation, the PEB adjudicated the mechanical LBP post MVA condition as unfitting, rated 10%, with application of the DoD Instruction 1332.39 and Application of the Veterans Administration Schedule for Rating Disabilities (VASRD) under spine rules applicable on or before 23 September 2002. At the MEB exam, 5 months before separation, the CI reported pain‐“pains that radiate down the leg from back pains” on the DD 2807 without elaboration in the NARSUM. Service...

  • AF | PDBR | CY2012 | PD 2012 00458

    Original file (PD 2012 00458.rtf) Auto-classification: Denied

    The lumbar spine condition, characterized as “myofascial low back pain (LBP) syndrome” and “degenerative arthritis of the lumbar spine,” were forwarded to the Physical Evaluation Board (PEB).The MEB also identified and forwarded one other condition“moderate obstructive sleep apnea,” as medically acceptable,IAW AR 40-501. RECOMMENDATION : The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. Physical Disability Board of Review

  • AF | PDBR | CY2012 | PD2012 00933

    Original file (PD2012 00933.rtf) Auto-classification: Approved

    The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. Chronic Low Back Pain .The narrative summary (NARSUM) notes the CI sustained a lifting injury in March 2001 causing severe low back pain (LBP). The Board must apply the VASRD rating criteria in effect on the date of the CI’s separation and the Board did...

  • AF | PDBR | CY2012 | PD-2012-01020

    Original file (PD-2012-01020.txt) Auto-classification: Approved

    Post-Separation) – All Effective Date 20020906 Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain w/out Neurologic Abnormality 5299-5295 10% Lower Back Condition with Bulging Disc at L4/L5 and Radiculopathy 5293 20% 20021010 .No Additional MEB/PEB Entries. The 2002 Veterans’ Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of separation, were changed in late September 2002 regarding...

  • AF | PDBR | CY2013 | PD2013 00078

    Original file (PD2013 00078.rtf) Auto-classification: Denied

    The CI was evaluated for reported symptoms of paresthesias of the right upper extremity, but cervical magnetic resonance imaging (MRI) on 9 January 2001 did not show spinal canal stenosis or nerve encroachment and nerve conduction studies on 13 April 2001 did not show any evidence of radicuolpathy.The CI was involved in another MVA on 26 June 2001 and was seen in the ER for “right shoulder, neck and low back pain;” the exam noted only right trapezius muscle tenderness, no spinal tenderness,...