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AF | PDBR | CY2012 | PD2012 01442
Original file (PD2012 01442.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201442   SEPARATION DATE: 20030615
BOARD DATE: 20130328


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (75H/Personnel Specialist) medically separated for low back pain (LBP). In September 2000, the CI injured his back while moving a heavy table. His LBP was treated, but he did not improve adequately to fully perform his military duties or meet physical fitness standards. He was issued a permanent profile and underwent a Medical Evaluation Board (MEB). A MEB at NAVMEDCEN Portsmouth found his back condition medically unacceptable, and referred him to a Physical Evaluation Board (PEB). Bilateral knee pain was also listed on the NAVMED Form 6100/1. In addition, depressive disorder was also forwarded to the PEB for adjudication. The PEB found the back condition unfitting, and rated it 10%. The knee pain and the depressive disorder were both determined to be not unfitting. The CI made no appeals and was medically separated.
CI CONTENTION: “The military Physical Disability Board made the decision to rate my disabilities at 10% total. Many personnel informed me that the VA would be the ones to rate me correctly and provide medical treatment. When I went to the dental facility at Fort Lee for a root canal, or possible extraction, of a tooth; I was told by the Dentist that the VA would take care of it when I was discharged. He said I would need extensive dental work and there would be no reason to use Army resources for something that would be covered by the VA, once I was rated 100%. After the initial injury I sustained on 28 August 2000, I was told by Dr. W---- that my knees were injured causing my back pain and leg numbness. After several “knee” classes and physical therapy with cortisone injections; Dr. W---- said he would keep me medicated for pain management and kept me on a “no running” profile. After 7 months, Dr. D---- transferred from Germany to Ft Lee and immediately sent me to a Neurosurgeon for an MRI on my back, stating that an MRI, X-Ray, Myleogram and/or CT scan should have been performed when I first reported that the numbness in my leg, came with severe back pain even after being diagnosed with broken vertebrae (L1,2 & 3), progressive spine stenosis, facet arthrophy, degenerative disk disease and more; I was made to endure physical therapy, intensive physical therapy, tens unit, hot &cold, weight, any therapy they could think of, under the guise of “protocol” before surgery. 14 months after being injured initially, I was finally sent for surgery at Portsmouth Naval Hospital. After the laminectomy, foraminectomy and diskectomy, and ?? other procedures; I was subjected to more therapies and three more months of narcotic drugs, on top of the more than 7 months I had been on them already. In January 2002 most of the drugs were no longer prescribed and I endured severe pain and frequent muscle spasms and recurrent numbness in both legs. In the interim, until the PDBR determination, I was constantly harassed by a company commander who continually complained to the IG office that he suspected that I never had a medical problem to begin with, and even accused me of faking my own surgery. The PDBR came back with 10%, this Co CDR told me that it would be best of I signed the medical discharge and left the Army now, that he was working with the IG office to charge me with malingering and he would make sure the VA would never see me otherwise.”


SCOPE OF REVIEW: The Board’s scope of review as defined in DoDI 6040.44, 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 back condition (mechanical LBP) and the knee condition (bilateral anterior knee pain) meet the criteria prescribed in DoDI 6040.44, and are accordingly addressed below. No other conditions are within the Board’s purview. Any condition outside the Board’s defined scope of review may be eligible for future consideration by the Army Board for Correction of Military Records.


RATING COMPARISON :              

Army PEB – dated 20030303
 VA (1 mo. Post-Separation) – All Effective 20030616
Condition
 Code Rating Condition Code Rating Exam
Low Back Pain 5299-5295 10% Lumbar Spinal Stenosis 5238 20%* 20030723
Bilateral Knee Pain Not Unfitting Meniscal Tear, Left Knee 5299-5257 0%* 20030723
Meniscal Tear, Right Knee 5299-5257 0%* 20030723
Depressive Disorder Not Unfitting Major Depressive Disorder 9434 30% 20030723
Neuropathy, Right Leg 8520 10% 20030723
Hiatal Hernia, with Reflux 7346 10% 20030723
↓No Additional MEB/PEB Entries↓
 0% x 3 / Not Service Connected x 5
Combined: 10%
 Combined: 60%*
* VA Rating s for the Back Condition and Knee Condition s were later increased, by a VA Rating Decision (VARD) dated 20050510


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him, and the significant impact they have had 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 members for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates 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 of the CI's 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 (LBP). In September 2000, the CI injured his back while moving a heavy table. He experienced pain in the back, and radicular symptoms in the right leg. Magnetic resonance imaging (MRI) showed disc bulging at L4-L5, and lumbar spinal stenosis (LSS) at L3-L4 and L4-L5. Many treatment options were tried, including surgery. However, his LBP persisted and an MEB was initiated. The MEB clinical evaluation was in November 2002 (7 months prior to separation). At that time, his gait was unsteady and he used a cane for support. Physical examination of the back revealed no muscle spasm, but there was decreased lumbar range-of-motion (ROM) due to pain. In the legs there was no muscle atrophy. Muscle strength and sensation in the lower extremities was normal. As noted above, the CI was medically separated from the Army on 15 June 2003. 5 weeks later, the CI had a VA Compensation and Pension (C&P) exam. He was using a cane, and wearing a back brace. He worked as a cashier 20-30 hours per week. The CI denied the use of any medications. His gait was antalgic. Examination revealed some tenderness to palpation. There was no muscle atrophy in the lower extremities and muscle strength was normal. Neurological exam revealed some decreased sensation in the right lower extremity. Deep tendon reflexes were normal. Two goniometric ROM evaluations were in evidence, and are summarized in the chart below.


Thoracolumbar ROM
PT ~ 9 mos . Pre-Sep
(200 20827 )
 VA C&P ~ 1 mo . Post-Sep
(200 30723 )
Flexion
45⁰
 45⁰
Ext ension
25⁰
 0⁰
R ight Lat eral Flex ion
30⁰
 30⁰
L eft Lat eral Flex ion
30⁰
 30⁰
R ight Rotation
30⁰
 30⁰
L eft Rotation
30⁰
 30⁰

The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence. The PEB coded the LBP as 5293 (intervertebral disc syndrome) and 5299-5295 (condition analogous to lumbosacral strain). The Veterans Affairs Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine which were in effect at the time of separation, were changed to the current standards in 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 military service.

The Board determined that the July 2003 C&P evaluation had significant probative value, since it was conducted just 5 weeks after separation. No other examination was that close to the separation date. At that exam, active forward flexion was limited to 45 degrees. Lumbar extension was 0 degrees, indicating total loss of lumbar extension. Based primarily on the data from that C&P exam, the Board unanimously agreed that the most appropriate coding option was 5292, and the CI’s LBP condition was best described as “moderate.” There was insufficient evidence in the treatment record to support classifying his LBP condition as “severe.” After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% for the low back pain (LBP) condition. It is appropriately coded 5292, and meets VASRD §4.71a criteria for the 20% rating.

The Board then considered the matter of peripheral neuropathy. On multiple examinations, motor strength testing had shown no objective evidence of muscle weakness. The CI’s radiculopathy was sensory only. After reviewing all the information regarding the radicular findings, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties. Therefore, his radiculopathy was not unfitting at the time of 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 that radiculopathy be considered an unfitting condition.

Other MEB/PEB Conditions. Bilateral anterior knee pain was adjudicated by the PEB as not unfitting. The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication. 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 knee pain was profiled, but was not implicated in the commander’s statement nor was it judged to fail retention standards. This condition was reviewed by the action officer and considered by the Board. 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 bilateral knee pain. Therefore, no additional disability ratings 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. In the matter of the LBP, the Board unanimously recommends a disability rating of 20%, coded 5292, IAW VASRD §4.71a. In the matter of the bilateral knee pain, the Board unanimously recommends no change in the PEB adjudication as not unfitting. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Mechanical Low Back Pain 5292 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120612, 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 AR20130009577 (PD201201442)
1. 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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final.

2. 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.

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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