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AF | PDBR | CY2012 | PD2012 01798
Original file (PD2012 01798.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201798
BRANCH OF SERVICE: Army  BOARD DATE: 20130328
SEPARATION DATE: 20030320


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (68X/Armament/Electrical System/Repair) medically separated for a back condition. Her chronic low back pain (LBP) began in 2001 and did not respond adequately to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The lumbar degenerative disc diseases (DDD) with low back pain (LBP) and right lower extremity (RLE) sciatic pain conditions, characterized as not meeting retention standards were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated chronic LBP with RLE pain as unfitting, rated 10%, with application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40. The CI made no appeals, and was medically separated with a 10% disability rating.


CI CONTENTION: “PEB gave a rating of 10% for chronic low back pain with right lower extremity pain, post L5-S1 fusion. I filed for VA disability immediately and received my rating on 9/4/2003 (continued) VA rated me at 40% for the same condition: DDD, lumbar post fusion at L5-S1. I believe my PEB rating should reflect 40% instead of 10% matching the VA rating. While Active Duty, I had three (3) procedures total: discogram, IDET, and fusion.”


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 ratings for the unfitting LBP with RLE pain conditions are 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. 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.


 RATING COMPARISON :

Service IPEB – Dated 20030103
 VA - (~1 Mon. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic LBP with RLE Pain 5299-5295 10% DDD, Lumbar Post Fusion at L5-S1 5292 40%* 20030210
No Additional MEB/PEB Entries
 Other x 7 20030210
Combined: 10%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 200 20904 (most proximate to date of separation 20030320 )
*Initially rated 20% for Vocational Rehabilitation; no other rating changes


ANALYSIS SUMMARY:

Chronic Low Back Pain with Right Lower Extremity Pain Condition. Service treatment records (STR) indicated a history of four incidents of falling that led to the CI’s report of chronic LBP. The CI was treated conservatively to include intra-disc electro thermography treatment (IET) without noted benefit. Around the same time the CI reported sharp shooting pain from the back to both legs with numbness. The CI underwent several consultations to include neurosurgery, orthopedic surgery, acupuncture treatment, and physical therapy. X-rays of lumbar spine, November 2000, revealed normal disc spaces, normal spine contour, alignment and curvature. Magnetic resonance imaging (MRI) study, 3 January 2001 demonstrated mild disc extrusion of L5-S1, and no evidence of nerve root compression. On 24 June 2002, 9 months prior to separation, the CI underwent disc fusion surgery. At 6 weeks follow up, she reported overall 50% improvement. Post-surgery lumbar spine X-rays, 7 November 2002 demonstrated the presence of orthopedic hardware and no evidence of fractures, or other spinal pathology. On 13 February 2003, less than a month prior to separation, nerve conduction study of the low back and RLE revealed no evidence of radiculopathy. The CI had three narrative summaries (NARSUM) prior to separation. During MEB/NARSUM evaluation, 12 March 2002, 12 months prior to separation, physical exam revealed tenderness to palpation, intact to sensation throughout; however, CI reported mild decrease in sensation in the right thigh and leg. Reflexes were reduced and muscle strength was normal. Pain was elicited on straight leg raise (SLR) without pain radiation, and no other objective evidence of radiculopathy. During the MEB/NARSUM on 4 August 2002, the evaluation noted normal neuromuscular examination, normal gait (heel toe walk and tandem walk), and no evidence of radiculopathy. Upon MEB/NARSUM evaluation on 7 November 2002, approximately 4 months prior to separation, the CI reported chronic back pain. On examination range-of-motion (ROM) was limited to 70 degrees of forward flexion and 15 degrees of extension. Sensation was intact, all reflexes were normal; she could heel-toe walk and tandem gait without difficulties. Tests of peripheral neuropathy were negative. At the VA Compensation and Pension (C&P) evaluation, performed on 10 February 2003, a month prior to separation, the CI reported back pain manifested by symptoms of chronic stiffness and alleviated by rest and medication. Of note, the CI reported she wears a back brace during ‘vigorous physical activity’ and is ‘able to walk extended distances without unsteadiness or falling’. On physical examination, gait and posture were normal, motor, sensory and reflex sensory examinations were unremarkable. There was no evidence of radiculopathy. Pain was noted to increase throughout ROM with repetitive use. Forward flexion was recorded at 70 degrees (with pain at 30 degrees); extension and lateral flexion bilaterally were 30 degrees each.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% for pain on motion code 5295 (lumbosacral strain). The VA rated 40%, coded 5292 and cited severe limitation of motion due to pain (flexion to 70 degrees with pain at 30 degrees) not supported by examination. 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 must correlate the above clinical data with the 2002 rating schedule which was in effect at the time of separation. Applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293, (intervertebral disc syndrome), and 5295 (lumbosacral strain). The Board considered the rating under 5295, lumbosacral strain, and agreed there was characteristic pain on motion supporting the 10%. There is insufficient evidence to support the higher rating of 20% since there was no evidence of spasms occurring on extreme forward bending and no documented clinical evidence of spasms in any record prior to separation. The Board noted the reduced ROM on the C&P and the MEB evaluations to be equivalent and, acknowledged in the VARD as essentially normal. After discussion, the Board agreed that the limitation of motion of the spine at the time of separation was slight and supported a rating of 10% code 5292. The Board considered rating under code 5293, intervertebral disc syndrome. There was no evidence of ratable peripheral nerve impairment, since no motor weakness was present and sensory symptoms had no functional implication and electromyogram (EMG) was normal. The Board considered rating for incapacitation under this code. The majority of treatment entries recorded full ROM with normal reflexes and sensations and strength, and no objective findings of spasms or gait disturbance on examinations. Extensive review of the records indicated medical quarters were prescribed on five occasions for a total of 7 days in the 12-month period prior to separation. This would achieve a rating of 10%; a 20% rating requires incapacitating episode with duration of at least 2 weeks. Therefore, after a comprehensive review, the Board was unable to find any other codes for consideration. After due deliberation in considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was not reasonable doubt in the CI’s favor to recommend a change in the PEB adjudication determination for the back 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 DoDI 1332.39 and AR 635-40 for rating the back was operant in this case and the condition was adjudicated independently of this instruction and regulation by the Board. In the matter of the chronic 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
Chronic Low Back Pain 5295 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120810, 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 AR20130008349 (PD201201798)

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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