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AF | PDBR | CY2012 | PD2012 01841
Original file (PD2012 01841.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201841
BRANCH OF SERVICE: Army  BOARD DATE: 20130619
SEPARATION DATE: 20040625


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (54B20/Chemical Operations Specialist), medically separated for chronic back pain. He experienced an onset of low back pain (LBP) from a motor vehicle accident (MVA) in 2002 for which he underwent surgery in early 2003. Post-operatively, the lower back pain 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 lower back condition, characterized as “S/P Back Pain” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The PEB adjudicated “chronic back pain, status post L4-S1 lumbar fusion, without neurologic abnormality” as unfitting, rated 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated.


CI CONTENTION: “My rating of 20% from A/D ANG was substandard in 2004 when compared to an Airman discharged at the same time with identicle surjury and injury. Why are ratings different from different US Military branches. I could not be retained in Army with this rating and surjury was not compatent. I became totally 100% disabled within 4 years.”


SCOPE OF REVIEW: The Board wishes to clarify the scope of its review as defined in Department of Defense Instruction (DoDI) 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those conditions “identified but not determined to be unfitting by the PEB.” The rating for the unfitting chronic back condition is 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.


RATING COMPARISON:

Service IPEB – Dated 20031224
 VA - based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Back Pain, Status Post L4-S1 Lumbar Fusion, without Neurologic Abnormality
 5241 20% Status Post Fusion of L4-SI Lumbosacral Spine 5243 0%* STR
No Additional MEB/PEB Entries
 Other x 4 STR
Combined: 0%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 200 70615 ( most proximate to date of separation [ DOS ] ).
* Subsequent VARD dated 20100108 increased to 10% based on exam on 20090903


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-aggravated condition continues to burden him. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic Low Back Pain Condition. The first entry in the clinical record is a clinic visit on 9 August 1990 with a complaint of LBP of 2 weeks duration. On a subsequent clinic visit on 13 November 1990, the CI reported constant back pain since a football injury as a teen-ager; and chronic neck, shoulder, upper back pain, and headaches. On a 4 November 2000, annual medical certificate, the CI reported using Lortab and Valium for pain due to a MVA in June 2000. On a 12 July 2002 clinic visit, the CI reported that on 10 July 2002, he suffered another MVA that exacerbated his condition. He tried conservative therapies to include epidural injections, physical therapy, and pain management. Magnetic resonance imaging (MRI) before his surgery showed a left paracentral disk protrusion with possible impingement on the left S1 nerve root, and mild facet joint hypertrophy. On 27 March 2003, he underwent an anterior lumbar interbody fusion with posterior segmental instrumentation surgery. He had resolution of the radicular type pain, but he did not improve to full functioning. His profiled limitations included no Army Physical Fitness Test (APFT), no backpack, no helmet, unable to carry or fire a rifle, no KP/Mopping/Mowing Grass, no marching, and no lifting more than 10 pounds. His commander’s statement remarked that the CI was unable to perform or meet the physical requirements for his primary MOS. The narrative summary (NARSUM) dictated on 17 November 2003, 8 months prior to separation, noted that the CI’s radicular pain had resolved after surgery, he was still having LBP, and was unable to run, walk, bike or swim for APFT. Pain was exacerbated from 5 out of 10–8 out of 10 by prolonged driving. He used Flexeril, and aspirin for the pain. Physical examination revealed a well-healed lumbar non-tender scar. He was tender over the iliac crest (bone graft site) with a well-healed scar. Bilateral lower extremity sensation was intact to light touch, normal strength, negative straight leg test for radiculopathy, +1 patellar reflexes, and +2 reflexes at the ankles. There was no mention of muscular spasms, or abnormal gait. ROM were flexion 45 degrees (normal 90), extension 15 degrees (normal 30), right lateral, and left lateral flexion at 10 degrees (normal 30). There were no VA Compensation and Pension examinations within the considerable timeframe (12-months).

The Board directs attention to its rating recommendation based on the above evidence. The Board determined the NARSUM consistent with the medical treatment record and thus most probative for adjudication at the time of separation. The Board considered the VASRD diagnostic code 5241 (spinal fusion) rated under the general spine rating formula in the VASRD used by the PEB for a 20% adjudication. The Board did not find evidence in the treatment record that the CI met the higher 40% rating criteria that requires forward flexion of the thoracolumbar spine of 30 degrees or less for a rating in the CI’s favor. The CI met the 20% criteria for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. The Board then considered code 5243 (intervertebral disk syndrome) used by the VA for a 0% adjudication 3 years after separation due to lack of evidence. The Board could not find evidence in the treatment record for an adjudication in the CI’s favor which requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months prior to separation that required bed rest prescribed by a physician and medical attention for a rating of 40%. The Board agreed this was not an advantageous coding choice. The VASRD allows rating of code 5243 (intervertebral disk syndrome) under the general rating formula for the spine as discussed above which allows for a 20% rating as conferred by the PEB. There were no findings for abnormal gait or contour, or evidence for incapacitating episodes, which would support a higher rating, nor are there other reasonable coding options. There was additionally no evidence of ratable peripheral nerve impairment in this case. 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 status post fusion of L4-L1 lumbosacral spine 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. 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 status post fusion of L4-L1 lumbosacral spine 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
 5241 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120808, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130019278 (PD201201841)

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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