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AF | PDBR | CY2012 | PD2012 01827

Original file (PD2012 01827.rtf) Auto-classification: Approved

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX CASE: PD1201827
BRANCH OF SERVICE: Army BOARD DATE: 20140306

SEPARATION DATE: 20030323

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (75H/Personnel Services Specialist) medically separated for a back condition. The CI’s low back pain (LBP) began in 1999 after performing physical training. The back condition could not be adequately rehabilitated to meet the 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 MEB forwarded chronic discogenic LBP secondary to disc bulge and herniation as well as disc desiccation; and chronic recurring bilateral retropatellar pain syndrome (RPPS) to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB (IPEB) adjudicated chronic LBP as unfitting, rated 10%, while the recurring bilateral RPPS was found not unfitting with likely application of the VA Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB which affirmed the IPEB findings and rating. The CI was then medically separated.

CI CONTENTION: “I was medically discharged from the service in 2003, because of my lower back condition (degenerative disc disease). Since then, I feel my condition has gotten worse. I developed chronic stiffness, chronic pain and arthritis which prevents me from performing normal daily activities. Since 2003, I have been treated at Tampa VA Medical Center. After so many years of physical therapy, pain pills, and other treatments the relief to my pain has been unsuccessful. In 2008, I was awarded 40% because of the lack of range of motion. In 2010, I was downgraded to 20% because of slight improvement in my range of motion. However, I feel that it is unfair because my condition is degenerative. As time goes by, I am having more bad days than good. Although some days I feel ok, most days I don't. Pain and mobility is not visible on an X-ray or an MRI. I was referred to the Spinal Institute, outside of the VA, for a series of shots in my lower back. I did not feel any relief from those shots. Only two weeks after the injection, I ended up in the VA Emergency room from the intolerable pain. I was treated with a shot of pain meds in my gluteus and a shot in my lower back. I will attach MRI results and medical records from the VA in Tampa and The Spinal Institute.”

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 condition is addressed below. The not unfitting bilateral RPPS was not contended; and therefore, not within the DoDI 6040.44 defined purview of the Board. This, and other any condition 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 his service-connected condition continues to burden him; 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 (DVA), 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.

RATING COMPARISON :

Army FPEB – dated 20030109	VA* – (5 mos. Pre-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Low Back Pain	5299-5295	10%	Chronic Low Back Pain	5293-5292	20%	20021009
Chronic Bilateral Knee Pain	Not Unfitting	Left Knee Strain	5299-5257	10%	20021009
		Right Knee Strain	5299-5257	10%	20021009
No Additional MEB/PEB Entries	Other x 1	20021009
Combined: 10%	Combined: 40%

* Derived from VA Rating Decision (VA RD ) dated 200 30326 (most proximate to date of separation ( DOS ))

ANALYSIS SUMMARY:

Low Back Pain. The CI has a history of LBP dating back to 1999. His back problem began while he was doing physical training with his unit. In November 2001, magnetic resonance imaging revealed degenerative disc disease at multiple levels, but no evidence of significant spinal stenosis. The LBP was treated with medication and other non-operative measures. In spite of treatment, the LBP problem persisted and an MEB was initiated. The MEB physical exam (PE) was on 29 August 2002. At that time he reported that his LBP was exacerbated by prolonged sitting, prolonged standing, running, and heavy lifting. He denied any continued radicular symptoms, and gait was normal. On PE, the back was normal appearing. There was no tenderness to palpation. Straight leg raise (SLR) was negative. With forward flexion, the CI was able to bring fingertips to 18 inches from the floor. This amount of forward flexion was consistent with his earlier exams. The treatment record indicates that in May 2002 he had 75% of flexion, and in July 2002 he had 45 degrees of flexion.

In October 2002, about 5½ months prior to separation, the CI had a VA Compensation and Pension (C&P) exam. Gait was abnormal, and there was tenderness noted on exam. SLR was negative and there was no sign of radiculopathy. His forward flexion was 30 degrees; extension was 10; right and left lateral flexion were 20 each and right and left rotation were 30 each. The CI had pain with lumbar motion.

The Board carefully reviewed all available evidence and directs attention to its rating recommendation. 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 service. These 2003 VASRD 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. The Army PEB and the VA chose different coding and rating options for the LBP condition. The PEB coded it 5299-5295 (analogous to lumbosacral strain) and assigned a rating of 10%. The VA chose diagnostic code 5293-5292 (intervertebral disc syndrome, with limitation of lumbar spine motion) and rated it 20%. The Board noted the disparity between the back exams which are documented above. At the August 2002 MEB exam, the CI was able to bring fingertips to 18 inches from the floor. As stated above, this amount of forward flexion was consistent with his earlier exams. At the October 2002 C&P exam, forward flexion was only 30 degrees. However, the record did not show the CI having difficulties with basic activities such as sitting in a chair, riding in a car or climbing onto the examination table; therefore, the Board gave less probative value to this C&P exam. After a thorough review of the evidence, the Board determined that IAW VASRD §4.71a, the LBP condition was best described as “moderate.” The record did not show sufficient evidence to support classifying the condition as “severe.” After due deliberation, the Board determined that a separation disability rating of 20% was warranted. The Board tried to find a path to a higher rating, using other VASRD codes which could be applied to the LBP condition, but the record did not show sufficient evidence of a disabling spine condition which could justify a rating higher than 20%. The Board also considered the possibility of neuropathy. After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties. There was no unfitting neuropathy present at the time of separation. Considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% for the LBP condition. It is appropriately coded 5292 and IAW VASRD §4.71a, meets criteria for the 20% rating level.

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 a disability rating of 20%, coded 5292. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board, therefore, 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 Low Back Pain	5292	20%
COMBINED	20%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120917, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

invalid font number 31502 SAMR-RB

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MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

invalid font number 31502 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
invalid font number 31502 for XXXXXXXXXXXXXXXXXX invalid font number 31502 , AR20140013240 (PD201201827)

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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:

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Encl                                                  XXXXXXXXXXXXXXXXXX invalid font number 31502
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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AF | PDBR | CY2012 | PD2012 01827

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