RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1200098 SEPARATION DATE: 20070119

BOARD DATE: 20120727

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92G10/Food Service Specialist), medically separated for chronic back pain. The CI did not improve adequately with treatment to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent P3/L3 profile and referred for a Medical Evaluation Board (MEB). Diabetes mellitus, type II and hyperlipidemia conditions, identified in the rating chart below, were also identified and forwarded by the MEB. The PEB adjudicated the chronic back pain condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION: “Have Military Police Report from accident where soldier hit me in the car accident. There was never a Line of Duty done and I ended up with a Cervical Strain which was not fully investigated by the medical staff at Fort Eustis Military Facility. I was continuously put on medication that made me gain up to 20+ plus pounds which I ended up beings a Diabetic, High Blood Pressure, High Clolestorel, and a serious case of Low Iron Deficiency Anemia which caused me in 2009 to go through Hemo-dialysis. My red blood cells are low all the time (they are still currently low). I also have seizures and recently have been diagnosed with low Vitamin-D Deficiency. All of this which is from the result of the accident in 2002 in Germany. It ended my Military career and I am suffering from Depression with an Adjustment Disorder which it hard to keep a job due to all of the medical issues I have acquired. Nothing Else Follows.”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in 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 condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The diabetes condition requested for consideration and the unfitting back pain condition meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. The other requested conditions and remaining conditions rated by the Department of Veterans’ Affairs (DVA) at separation and listed on the DD Form 294 are 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 Army Board for the Correction of Military Records (BCMR).

RATING COMPARISON:

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the DVA but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Chronic Back Pain. The CI had chronic intermittent back pain since a motor vehicle crash in 2002 which became more persistent and worse interfering with performance of duties. There were complaints of radiating pain without neurologic abnormalities. Service treatment records (STR) during 2005 recorded examination findings of muscle spasm with flares of back pain, however subsequent examinations did not document presence of muscle spasm. Magnetic resonance imaging (MRI) performed in December 2003 and October 2005 were normal. The MEB narrative summary (NARSUM) examination, performed on 6 August 2006, documented tenderness without muscle spasm. Active range-of-motion (ROM) was “full” and lower extremity strength and reflexes were normal. Physical therapy ROM examination performed on 27 June 2006 documented flexion of 95 degrees (92 95 97), extension of 10 degrees (11 11 11), left lateral flexion of 40 degrees (40 40 45), right lateral flexion of 50 degrees (48 50 51), left rotation of 55 degrees (55 55 55), and right rotation of 50 degrees (50 50 50). Extension was limited by 20 degrees but movement in other planes was normal. There was pain with motion.

Prior examinations by pain medicine and orthopedics documented absence of spasm, normal gait, full range of motion, and intact strength and reflexes. The VA Compensation and Pension (C&P) examination, performed on 5 April 2007, 3 months after separation, recorded intermittent back pain one to three times per week lasting 1 to 2 days increased by prolonged standing, lifting, and strenuous activities. There was no radiation, weakness, or paresthesia. The CI reported two incapacitating episodes in the prior 12 months of 48 hours duration each time. On examination, gait, posture and spinal contour was normal. There was no muscle spasm. ROM was flexion 100 degrees, extension 20 degrees, right lateral flexion 40 degrees, left lateral flexion 40 degrees, right rotation 30 degrees, and left rotation 30 degrees. There was mild pain with motion, and no additional limitation with repetition. The Board directs attention to its rating recommendation based on the above evidence. The ROM evidence in both proximate evaluations supports no more than a 10% disability rating including consideration of §VASRD 4.59 (painful motion), §4.40 (functional impairment), or §4.45 (Deluca). There is no pathway to any higher rating under this code as muscle spasm or guarding severe enough to cause abnormal gait or spinal contour (20%) was not present. The CI did not have intervertebral disc disease and there were not documented incapacitating episodes that would meet the criteria for a minimum rating under the alternative formula for incapacitating episodes due to intervertebral disease. There was no evidence of unfitting 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 chronic back pain condition.

Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB was diabetes mellitus type II. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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. Type II diabetes mellitus was diagnosed in August 2006, after initiation of the MEB for back pain. The CI was placed on oral medication and advised to follow a diet and exercise with weight loss. The condition was reviewed by the action officer and considered by the Board. There was no indication from the record that this 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 for the diabetes condition; and, therefore, no additional disability ratings can be 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. 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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended diabetes mellitus type II condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120120, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXX, AR20120014277 (PD201200098)

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 XXXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA