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AF | PDBR | CY2012 | PD2012 01538

Original file (PD2012 01538.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: CASE: PD1201538
BRANCH OF SERVICE: Army BOARD DATE: 20130627

Date of Permanent SEPARATION: 20011015

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (11B1P, Infantryman) medically separated for a low back condition. The CI was first seen for low back pain (LBP) in 2000. He was treated with non-steroidal anti-inflammatory medications (NSAIDs) and physical therapy (PT), but did not respond adequately 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). The chronic LBP with degenerative disc disease (DDD) condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated LBP condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.

CI CONTENTION: The CI attached a one page statement to his medical records which was reviewed by the Board and considered in its recommendations: “At this time, I respectfully request consideration of a higher disability rating for my service connected conditions. When I was honorably discharged from the Military, many issues had not been fully addressed. Tingling and numbness in both feet had been reported, but no testing was done to determine the extent of my nerve loss. I also reported mental health issues that were reported but not listed with my discharge. I enrolled in mental health services, both medical and psychological/counseling and was treated. After my service showed me the face of suicides in Bosnia. While stationed in New York 9-11 happened working as Medical orderly processed numerous clients while my MEB occurred. I also continued to experience problems with my feet, decreased movement and pain in thoracic and lumbar areas of my back; I had an unknown chronic skin condition and tinnitus. I also have a cold weather injury with documented frostbite also known as Chilblain on my face and body. Frostbite and Chilblain are not listed as cold weather injury. I have been diagnosed with Schmorl’s nodes, degenerative disc disease, hypolordosis neuritis and spondylosis, all which have worsened since my discharge. I am also experiencing problems with hyperlipidemia, increased weight gain, idiopathic testosterone deficience and increases in blood pressure. These are all of the conditions that were in existence and have increased after discharge. I believe that all of these conditions provide a further basis for a rate increase. Please include attached documents for your review. Thank you for your time and consideration of my information and request.”

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 to include the contended thoracic and lumbar back problems, Schmorl’s nodes, DDD and subsumed referenced diagnoses of “hypolordosis neuritis” and spondylosis conditions are all addressed together below. Any other condition or contention not requested in this application remains eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20010907	VA* - based on Service Treatment Records (STR)
Condition	Code	Rating	Condition	Code	Rating	Exam
Low Back Pain	5299-5295	10%	DDD, L3-L4	5010-5295	10%**	STR
No Additional MEB/PEB Entries	Other x 8	STR
Combined: 10%	Combined: 10%

* Derived from VA Rating Decision (VA RD ) dated 200 20710 (most proximate to date of separation (DOS) )

** Rating increased to 20% in VARD 20100331 based on C&P 20100225 retroeffective to the DOS; additionally VARD 20120814 based on C&P 20120403 added radiculopathy for R &L LE at 20% each also retroeffective to DOS.

ANALYSIS SUMMARY: Per DoDI 6040.44, it is noted that the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is confined to reviewing all available medical records and other evidence to assess the fairness of PEB rating determinations, compared to Veteran’s Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Low Back Pain Condition. At the narrative summary (NARSUM) exam, approximately 3 months before separation, the CI reported that he had been experiencing LBP for the previous 2 years. The CI had stated elsewhere in the record that the onset of the pain had been insidious following airborne school. Additionally, he had been involved in a motor vehicle accident in 1998 following which he had complained of neck pain primarily, with back pain also mentioned. Because the pain seemed to be getting worse in spite of treatment which included activity limitation, NSAID medication, spinal stabilization classes and PT, he requested a permanent profile and referral to the MEB in January 2001. The NARSUM documents “recurring LBP with acute exacerbations without great improvement and this inhibits his abilities to perform in his MOS as an 11B Infantryman.” Complaints included “pain and limited range-of-motion (ROM).” At the MEB exam (documented on SF Form 88), approximately 6 months before separation, the CI reported that he felt “injured.” MEB physical exam revealed normal spinal contour “without evidence of lordosis or curvature of the spine.” Gait, strength, and deep tendon reflexes were intact. ROM was not specified in this exam but had been documented in numerous other entries in the record in the 1.5 years prior to separation as being within normal limits with pain. Two PT notes documented unspecified leg length discrepancy. A PT note dated 23 August 2000 documented lower extremity strength, sensation and reflexes as being normal bilaterally. Imaging studies including X-rays done in February 2000 showed moderate narrowing of the L3-L4 joint space with a large defect in the anterior upper part of the L4 vertebra suggestive of a Schmorl’s node. A magnetic resonance imaging (MRI) done in December 2000 documented the following impression: “straightening, DDD L3-4 with a large Schmorl’s node superior endplate of L4 as seen on plain films. No disc herniation is seen.” The record reflects that an initial VA Compensation and Pension (C&P) examination had been scheduled on two occasions in April 2002 but that the CI did not report for those exams. Thus, the VARD dated 10 July 2002, which was most proximate to permanent separation, was based solely on findings documented in the service treatment record (STR). Over 8 years remote from separation a VA C&P exam (February 2010) documented limited thoracolumbar forward flexion to 60⁰ (90⁰ normal) and the VA increased the back rating to 20%. A VA exam in April 2012 documented bilateral lower extremity radicular symptoms and signs with award of a VA rating of 10% for each leg.

The VASRD coding and rating standards for the spine prior to 23 September 2002, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine. The applicable coding options for this case are excerpted below.

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

5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site of diseased disc, little intermittent relief…… . .. . 60
Severe; recurring attacks, with intermittent relief.............................. ........................ ..... ..... 40
Moderate; recurring attacks....................................................................... .............. ....... ....... 20
Mild.................................................................................................... ........................ .......... .... 10
Postoperative, cured........................................................................... .......................... ........ .... 0

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 osteo-arthritic 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
Wit h characteristic pain on motion .................................................... .............................. ..... . 10

The Board directs attention to its rating recommendation based on the above evidence. The PEB characterized the condition as LBP with history of a motor vehicle accident (LOD). Noting MRI findings as well as pain with motion, it coded it analogously as 5299-5295 (lumbosacral strain) and awarded a 10% disability rating consistent with a finding of “characteristic pain on motion.” The VA, in the absence of a current C&P exam, based its adjudication on the findings of the STR and MEB, characterized the condition as DDD L3-L4. It coded the condition as 5010-5295 (arthritis due to trauma with X-ray findings) and, like the PEB, rated it at 10%. The remote post-separation VA exams were considered post-separation worsening and not reflective of the CI’s condition at the time of separation. Although the Board considered that the record reflected adequate evidence of painful motion, it concluded that absent evidence of moderate or severe limited ROM, muscle spasm on extreme forward bending, or loss of lateral spine motion, a higher (20%) rating under the 5295 coding option could not be justified. Furthermore, given the normal ROMs reflected in the record, only the minimal compensable (10%) rating could be awarded under 5292 (limitation of motion, lumbar) with concession of §4.59 (painful motion). The Board also considered coding under 5293 (intervertebral disc syndrome) but concluded that with insufficient evidence of neurological findings or recurring attacks, the disability could be described as no more than “mild” and a higher than 10% rating could not be achieved under this option. While acknowledging that there may have been post-separation worsening which was documented several years later by the VA, members concluded that the PEB findings were consistent with the clinical picture portrayed by the record proximal to the time of separation.

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. The Board concluded therefore that this condition could not be recommended for additional disability rating.

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	5299-5295	10%
COMBINED	10%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120824, 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 AR20130018771 (PD201201538)

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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AF | PDBR | CY2012 | PD2012 01538

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