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AF | PDBR | CY2012 | PD2012 01369
Original file (PD2012 01369.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201369   SEPARATION DATE: 20011216
BOARD DATE: 20130417


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (12B10/Combat Engineer), medically separated for chronic low back pain (LBP). The CI began to experience increasing chronic LBP without specific injury while deployed to Kosovo in 1999. The CI did not improve adequately with treatment 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). Minor instability of the left shoulder identified in the rating chart below, was also identified and forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the chronic LBP condition as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The minor instability or the left shoulder condition was determined to be not unfitting. The CI made no appeals, and was medically separated.
CI CONTENTION: “Bad Back and Shoulder”


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The chronic LBP and minor instability or the left shoulder conditions as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below. Any remaining conditions rated by the VA at separation or listed on the DD Form 294 are not within the Board’s purview. 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 20011108
 VA (~1 Mo. Post-Separation) – All Effective Date 20011217
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5295 10% Lumbosacral Degenerative Disc and Joint Disease 5293-5295 10% 20020613
Minor Instability of the Left Shoulder Not Unfitting Residuals, Left Shoulder Status Post Dislocation 5201 20% 20020613
No Additional MEB/PEB Entries
 Other x 1 20020613
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision, dated 20020730 (most proximate to the date of separation)


ANALYSIS SUMMARY:

Chronic Low Back Pain Condition. The narrative summary (NARSUM) noted a chief complaint of chronic LBP with intermittent radiation into the left upper thigh for one and one half years. This was gradual in onset without specific injury. There was no bowel or bladder incontinence, or numbness and tingling in the extremities. X-rays 12 March 2001 showed early degenerative joint disease (DJD) at L3-4 without loss of disc height. Computed axial tomography (CT) of the lumbar spine 6 April 2001 demonstrated possible minimal degenerative changes of the right L5-S1 facet joint. The CT scan was otherwise normal without disc disease or herniation. Bone scan of the lumbar spine was normal. X-rays of the lumbosacral spine 17 April 2001 were normal. Neurosurgical evaluation concluded there was no surgical indication. The CI was unresponsive to non-surgical therapies. Orthopedic examination 28 August 2001 recorded ability to flex and touch toes, but limitation of extension due to pain. Straight leg raising (SLR) was negative for radicular signs and strength, reflexes and sensation were normal. At the time of the MEB NARSUM examination, the CI reported back pain with lifting more than 40 to 50 pounds, running, or performing sit-ups. On examination, back flexion was 75 degrees, extension 25 degrees, and lateral bending 30 degrees both sides. Spinal contour, gait, strength, reflexes and sensation were normal. There was no tenderness and SLR was negative for radicular signs. At the VA compensation and pension (C&P) examination, 13 June 2002, 6 months after separation, the CI reported continued chronic LBP with heavy lifting more than 34 pounds, bending, and prolonged standing. On examination, gait and posture were normal. There was no tenderness or spasms. Forward bending was 70 degrees with no pain. Extension was 30 degrees and lateral bending was 30 degrees to both sides, all without pain. After repeated walking and bending he complained of increased back pain, no impaired endurance, no incoordination. The examiner states would assign an additional 10 degrees loss of flexion because of flare-ups.

The Board directs attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2001 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004. The Board must correlate the above clinical data with the 2001 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome; and 5295 lumbosacral strain). The Board first considered the rating under the VASRD diagnostic code 5292 in effect at the time. All Board members agreed the limitation of motion on both examinations did not approach the moderate level and more nearly approximated the slight level with a 10% rating. Although there was occasional radiation of pain there was no evidence of intervertebral disc syndrome to warrant consideration of rating under that code (5293). Finally, the Board considered the rating under the VASRD diagnostic code 5295 used by the PEB and the VA. There was characteristic pain on motion to support the 10% rating. There was no evidence of spasm on forward bending or loss of lateral bending or other features to support a higher rating. There is no documentation to support rating for radiculopathy with only intermittent complaints of pain in the right leg without evidence for weakness, atrophy, sensory or motor loss and no objective signs on physical examination. 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 low back pain condition.
Contended PEB Conditions. The contended condition adjudicated as not unfitting by the PEB was minor instability of the left shoulder. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The CI was assaulted on 1 July 2001 and struck on the shoulder by a bat. He was evaluated at a civilian hospital and released. Follow up in the military treatment facility later the same day, 1 July 2001, noted painful shoulder motion with normal X-rays and diagnosed a shoulder bruise. Follow up in the clinic on 1 and 2 July 2001 recorded CI report of treatment for left shoulder dislocation in the assault, but civilian treatment records are not available for review. Use of a sling and physical therapy was recommended. Following 2 July 2001, service treatment records document care for back pain without any mention or treatment for left shoulder pain. Orthopedic examinations
28 August 2001 and 19 September 2001 focused on the back made no reference to shoulder problems. The physical profile issued by the orthopedic surgeon 28 August 2001 was for LBP only. The MEB examination 30 August 2001 recorded report of “recurrent” dislocations of the left shoulder without further detail. At the time of the MEB NARSUM examination 4 October 2001, the CI reported pain with lifting, push-ups and overhead work, and a sensation of coming out of the socket. On examination left shoulder range-of-motion (ROM) was near normal (abduction 140 degrees, flexion 180 degrees, external rotation 90 degrees, and internal rotation 25 degrees; differing only in abduction compared to the right shoulder). There was no pain or tenderness and strength of both upper extremities was normal. There was evidence of mild instability evidenced by a positive sulcus sign, but the apprehension test was negative for instability. The left shoulder condition was reviewed and considered by the Board. Although there was mild instability, there was good functional ROM, good strength and absence of tenderness or pain at the MEB NARSUM examination. The Board made note of the C&P examination 6 months after separation recording decreased ROM and report of pain, but noted the absence of atrophy indicating symmetric use of the arms and normal strength. There was no indication from the record that this condition significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended minor instability of the left shoulder condition; and, therefore, no additional disability rating can be recommended.
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 chronic LBP condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended left shoulder condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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 t he CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Low Back Pain 5295 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120709, 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 AR20130010374 (PD201201369)


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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