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AF | PDBR | CY2012 | PD2012 01686
Original file (PD2012 01686.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:             CASE: PD1201686
BRANCH OF SERVICE: Army           BOARD DATE: 20130417
SEPARATION DATE: 20030513


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (71L/Administrative Specialist), medically separated for low back pain (LBP). The CI was in a motor vehicle accident (MVA) in 1999 which precipitated her back condition. Despite undergoing extensive evaluation and conservative treatment over a period of years, the CI could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB identified and forwarded to the Physical Evaluation Board (PEB) “herniated nucleus pulposus, L5-S1” and “right ureteropelvic junction obstruction with poorly functioning right kidney”, identified in the rating chart below, as medically unacceptable. The PEB adjudicated chronic LBP as unfitting, rated 10% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy. The kidney condition was determined to meet retention standards and therefore to be not unfitting and not ratable . The USAPDA concluded the case was properly adjudicated, and administratively corrected the DD Form 199. The CI made no appeals and was medically separated.


CI CONTENTION: “I repeated the same surgery back in June 2010 still get UTI as well as kidney infections. Still endure back pain, have pituitary brain tumor.” The CI further elaborates on her kidney and pituitary conditions in a letter included with her application.


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. Ratings for unfitting conditions will be reviewed in all cases. The rated LBP as requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview. In addition the kidney condition contended by the CI is within the Board’s purview and will be addressed below. The CI’s contended pituitary condition was not recognized by the PEB and is therefore 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 respective Service Board for Correction of Military Records.


RATING COMPARISON :

Service Admin PEB – Dated 20030206
 VA - (16 Mos. Pre Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5293-
5299-5295		 10% Herniated Nucleus Pulposus,
L5-S1		 5243 20% 20020130
Right Kidney Obstruction Not Unfitting Right Kidney Obstruction 7599-7511 10% 20020202
No Additional MEB/PEB Entries
 Other x 14 20020202
Combined: 10%
 Combined: 60%
VA rating effective 20030514 from VARD 20040525 . VARD 20051021 increased right kidney o bs truction to 40% from 20040719. VARD 20110712 increased right kidney obstruction to 100% from 20100609 for post-surgery convalescence then resumed rating of 40% from 20100801 , with recommendation for further decrease to 10% . VARD 20110922 decreased right kidney obstruction to 10% from 20111201 .


ANALYSIS SUMMARY: In accordance with DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. 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 Veterans Affairs Schedule for Rating Disabilities (VASRD) and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation. The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. The Board likewise acknowledges the CI’s contention for rating of her kidney condition which was determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended.

Chronic Low Back Pain. The 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards on
26 September 2003, following the CI’s permanent disability disposition. The older ratings were based on a judgment as to whether the disability was mild, moderate or severe. The current standards are grounded in range-of-motion (ROM) measurements. IAW DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation.

The service treatment record indicates that the CI was treated for LBP in December 1996 after she lifted a microwave oven. In July 1999, the CI was involved in an on-post MVA when her vehicle was struck from behind and experienced subsequent back pain. A magnetic resonance imaging (MRI) exam showed mild degenerative disc disease (DDD) and a small disc protrustion at L5-S1 with mild compression on the S1 nerve root. X-rays of the lumbar spine were normal. At a VA Compensation and Pension (C&P) exam in January 2002, 16 months prior to separation, the CI reported occasional low back discomfort, morning stiffness, and radiating pain to her right foot; “vague discomfort” in the paraspinal lumbar area; and, no loss of bladder or bowel function. The examiner noted moderate tenderness in the right buttock area. Straight leg raise testing was negative. Right lower extremity strength was normal except for mild weakness in the foot flexor. Knee and ankle reflexes were mildly decreased but symmetrical. The examiner referred to an MRI “within the last year” which reportedly showed an L4-5 right foraminal stenosis and “mild loss of disc height.” The examiner concluded that the CI was “doing well with conservative treatment” at that time. An orthopedic surgery consultation, 10 months prior to separation, noted evidence of DDD that was “normal for age,” and recommended a profile or administrative separation for a non-disabling condition. A second MRI showed mild, central herniation at L5-S1 without nerve root impingement. During a neurosurgery consultation the CI reported pain, stiffness, and spasm in her lower back, with pain radiating to both lower extremities, right greater than left. The surgeon noted the CI walked slowly in a slightly forward flexed position. The lower extremity strength, light touch sensation, and reflexes were normal. The surgeon was unable to identify a radicular component or evidence of nerve root compromise, and his assessment was chronic LBP of unclear etiology without radiculopathy. The narrative summary (NARSUM) examiner on 6 November 2002 (6 months prior to separation) reported that work capacity evaluation showed an impaired ability to lift, and that she was capable of performing only sedentary or light work. Examination observed the CI to be in mild discomfort due to LBP; movements were slow. Lower extremity muscle strength was normal. ROM in evidence is provided in the following table:

Thoracolumbar ROM
(Degrees)
 VA C&P ~ 16 Mo. Pre-Sep Neurosurgery. 9 Mo.
Pre-Sep		 NARSUM ~ 6 Mo. Pre-Sep
Flexion (90 Normal)
 90 40 40-45
Extension (30)
 20 20 20
R Lat Flexion (30)
 15 30 30
L Lat Flexion (30)
 15 30 30
R Rotation (30)
 - 20 20
L Rotation (30)
 - 20 20
Comment
 + L/S paraspinal tenderness +Painful motion, lumbar tenderness
§2003 VASRD Rating
 10% (VA 20%) 20% 20%

The Board directs attenti on to its rating recommendation based on the above evidence . The VA’s rating decision reflected the newer VASRD coding options, but as previously elaborated the Board must base a rating recommendation on the older VASRD in effect at the time of separation. Th e PEB assigned a 10% rating under combin ed 5293 (in tervertebral disc syndrome) and analogous 529 5 (lumbosacral strain) codes , and cit ed “ pain with motion ” as the rationale. Board members agreed that evidence of muscle spasm and loss of lateral spine motion was lacking, and therefore the next higher 20% rating was not justified under the 5295 code; and further noted that there was no evidence of “incapacitating episodes” that would justify a minimal rating under the 5293 code. Under the 5292 code (spine, limitation of motion of, lumbar) a 20% rating is supported for “ moderate” limitation of motion. The Board agreed that the “moderate ” descriptor most accurately depicted the clinical condition, and therefore a rating of 20% was justified . After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic LBP condition , coded 5292 .

Contended PEB Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that the right kidney obstruction condition was not unfitting. 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. A renal ultrasound and a computerized tomography scan performed in April 2000 to evaluate acute right flank and right lower quadrant abdominal pain; they revealed marked dilatation of the collecting system of the right kidney. A stent placed in April 2000 to relieve possible obstruction was removed after 2 months. Subsequent studies determined that obstruction was not present, and that radiographic abnormalities were consistent with a congenital megacalycosis (congenital enlargement of renal collecting system not due to obstruction). A urologic examiner in January 2001 concluded that any right flank pain the CI was experiencing was not due to the kidney abnormality, but was likely related to her known lumbar spine condition. Follow-up imaging studies in October 2002 again noted probable right megacalycosis, although there was also some stone formation. Functioning of the right kidney was noted to be diminished, while the left kidney function was normal. In addition to the previously noted congenital enlargement, obstruction (presumably due to kidney stones) was now considered a possibility. Although the right kidney condition was designated as medically unacceptable on the MEB submission, it was identified on the profile as P1 and was not implicated in the commander’s statement. It was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that the right kidney 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 of the right kidney obstruction condition and so no additional disability rating is 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. As discussed above, PEB reliance on the USAPDA pain policy for rating chronic LBP was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a. In the matter of the contended right kidney obstruction condition, the Board unanimously recommends no change from the PEB determinations 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 her prior medical separation:

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


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120914, 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 AR20130010313 (PD201201686)
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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