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AF | PDBR | CY2012 | PD2012 01818
Original file (PD2012 01818.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201818
BRANCH OF SERVICE: Army  BOARD DATE: 20130502
SEPARATION DATE: 20040816


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (42A/Human Resources Specialist) medically separated for chronic recurrent low back pain (LBP). CI sustains injuries around May 2001 when he rolled down a hill. In March 2002 while shoveling dirt from a pit the CI felt a pop in his lower back. A 2002 magnetic resonance imaging (MRI) exam showed a herniated disc at L5-S1. The CI since has had recurrent back pain. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The chronic recurrent LBP condition was 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 recurrent LBP as unfitting, rated 10%. The CI made no appeals, and was medically separated.


CI CONTENTION: “I injured my back while doing physical fitness in 2002, I received an operation on my back in February 2003, only after the doctor from Walter Reed reviewed my MRI, and said that within 6 months I would be lucky to still be walking, that was a year after the date of the MRI. The surgery did not fix my back entirely. I still performed my duties even though my condition continued to worsen" I had orders to deploy in August 2004 when I was found to be unfit and unable to deploy with my unit and continue serving my country, but was not medically retired. Upon my discharge from the military and having to gain employment to support my family. I was limited in the type of work that I could perform due to my injuries. The work that I was able to perform contributed my condition which has continued to worsen (l now suffer from nerve damage, strength loss, and incontinence) and in addition to the surgery provided by the U.S. Army, a morphine infusion system was surgically implanted by the VA of Buffalo, NY I have since been rated at 100% unemployable and request that my 10% disability rating that I received upon discharge be upgraded to medically retired for my 13 years of Honorable service and permanent condition of disability.”


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 LBP condition is addressed below; 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.


RATING COMPARISON :

Service IPEB – Dated 20040706
 VA - (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Recurrent Low Back Pain 5243 10% Degenerative Joint Disease of Lumbosacral Spine, Status Post Laminectomy and Discectomy 5242 20% 20041207
No Additional MEB/PEB Entries
 Other x 10 20041207
Combined: 10%
 Combined: 40%


ANALYSIS SUMMARY:

Chronic Recurrent Low Back Pain Condition. The narrative summary (NARSUM) dated 14 May 2004 noted the back pain began in May 2001 after a fall during physical training. At the time of injury, the CI reported back spasms without radiculopathy. In April 2002, he fell and struck his lumbar spine against a fire hydrant. The following day he felt his back pop. The CI reported radiating pain down the left leg and numbness and tingling in the foot. An MRI of the lumbar spine, 11 June 2002, showed a herniated disc at L5-S1 causing significant nerve compression. The CI underwent multiple consultations, to include urology (for reported incontinence), since his injury in 2001. On 25 February 2003, more than a year prior to separation, the CI underwent disc surgery. He reported overall improvement after surgery. His left leg radicular symptoms, back pain, and incontinence resolved but he re-injured his back in April 2003. Physical therapy examination, 7 May 2004, approximately 3 months prior to separation, recorded range-of-motion (ROM) forward flexion of 60 degrees; extension of 30 degrees; lateral right bend of 35 degrees and left of 40 degrees; and right rotation of 85 degrees and left of 65 degrees. The commander’s statement indicated the CI had been on and off profiles for lower back pain because he was asymptomatic at times. At the MEB/NARSUM exam dated 14 May 2004, 3 months prior to separation, the CI reported persistent back pain with an average intensity of 3-8/10 without radicular symptoms. The MEB physical exam noted no muscle atrophy; a positive straight leg raise (SLR) on left and negative on right; a normal neurological exam; forward flexion of lumbar spine with fingertips to mid-tibia with pain; and no pain on extension. Gait was not recorded. The physician stated the CI’s condition worsened over past the year, i.e., since surgery. The CI presented to the emergency room on 18 August 2004, 2 days after separation, with report of back pain. Physical examination revealed back ROM “90% of normal,” no sensory or motor abnormalities and that SLR was negative bilaterally. Gait was antalgic, slightly guarded. Approximately a month later he returned to emergency room for back pain after a fall. At the VA Compensation and Pension (C&P) dated December 2004, approximately 4 months after separation, physical exam noted a normal gait; tenderness; forward flexion of 50 degrees with pain at 50; extension of 15 degrees with pain; right and left lateral flexion 30 degrees without pain; and right and lateral rotation of 45 degrees with pain. Repetitive movements reduced these ROMs by another 10 degrees. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% for pain under code 5243 (rating the spine, new spine rule; LOM or intervertebral disc syndrome). The VA rated 20% coded 5242, citing a reduced ROM. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. Under the 5243 code at the time of separation, a 20% rating required documented incapacitating episodes or limitation of motion. There was no evidence supporting a higher rating for incapacitating episodes under this code. Additionally, there was no documented evidence of spasms resulting in postural or contour changes in the spine that would support a higher rating under any applicable code. Review of the records recorded several entries that indicated limitation in forward flexion; only one quantified. The record showed four entries where ROM was referenced; two were consistent with each other and were clearly not greater than 60 degrees; two were indeterminate. One entry 3 months prior to separation recorded a forward flexion ROM of 60 degrees, with a combined ROM greater than 120 degrees which would be consistent with a 20% rating. The Board concluded the preponderance of the evidence suggests the ROM was approximately 60 degrees. After discussion, the Board agreed that the limitation of motion of the spine at the time of separation would support a higher rating of 20% under code 5243. There is no VASRD sanctioned pathway to a higher rating under any other applicable code.


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 back pain condition, the Board by split decision of 2:1 recommended a disability rating of 20% coded 5243 IAW VASRD §4.71a. The dissenting voter supported no re-characterization of the PEB rating and elected not to submit a minority opinion. 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
Chronic Recurrent Low Back Pain 5243 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121022, 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 AR20130010370 (PD201201818)
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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