RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200575 SEPARATION DATE: 20021226
BOARD DATE: 20130123
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SGT/E‐5 (63B20/Wheel Vehicle Repairer), medically
separated for chronic low back pain (LBP). The CI developed LBP in 1992, 10 years prior to
separation, while deployed. Despite conservative management, he did not did not improve
adequately to meet the physical requirements of his Military Occupational Specialty or satisfy
physical fitness standards; additionally, the CI occasionally required narcotic medications for
pain control. He was issued a permanent L3 profile and referred for a Medical Evaluation Board
(MEB) which determined the LBP to be medically unacceptable. The MEB forwarded no other
conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the chronic
LBP condition as unfitting, rated 10%, with application of DoDI 1332.39. The CI made no
appeals and was medically separated with a 10% disability rating.
CI CONTENTION: “Progressing low back pain and continued problems with hypertension and
continued knee problems.”
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 back condition requested for
consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, and is
accordingly addressed below. The other requested conditions [hypertension and knees] 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 Correction of Military Records.
RATING COMPARISON:
Code
5299‐5295
Rating
10%
Code
5299‐5295
7101
VA (STR Pre‐Sep) – All Effective Date 20021227
Service IPEB – Dated 20021106
Rating
Condition
Condition
Chronic Low Back
Residual Low Back Inj
10%
Pain…
HTN
10%
No Additional MEB/PEB Entries
0% X 1 / Not Service‐Connected x 11
Combined: 10%
Combined: 20%**
*CI failed to report to VA exams scheduled 20030508 and 20030512.
**Pre‐separation and subsequent VARDs are outside of the adjudication window
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application
regarding the significant impairment with which his service‐incurred condition continues to
burden him. The Board wishes to clarify that it is subject to the same laws for disability
entitlements as those under which the Disability Evaluation System (DES) operates. The DES
Exam*
STR & VARD 19970108
STR & VARD 19970108
STR & VARD 19970108
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 (Title 38, United States Code). The Board evaluates DVA evidence
proximal to separation in arriving at its recommendations, but its authority resides in evaluating
the fairness of DES fitness decisions and rating determinations for disability at the time of
separation. The Board further acknowledges the CI’s contention for ratings for other conditions
documented at the time of separation, and notes that its recommendations in that regard must
comply with the same governance. While the DES considers all of the member's medical
conditions, compensation can only be offered for those medical conditions that cut short a
member’s career, and then only to the degree of severity present at the time of final
disposition. The DVA, however, is empowered to compensate 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.
Chronic Low Back Pain Condition. The CI first noted LBP while deployed to Desert Storm when
he fell off of a truck while loading it. He was noted to have marked scoliosis and treated
conservatively. The CI separated, but then returned to active duty in 1997. There were
multiple entries for the bilateral knee pain, but he was not seen again for his LBP until
24 January 2002, 11 months prior to separation. He was noted to have a “backache” and
treated with medications and duty limitations. He was next seen for his LBP on 15 May 2002
when he complained of “severe muscle spasm” and was again treated conservatively. An X‐ray
2 days later was normal. He was seen again 4 days later and noted to have “marked
lumbarsacral spasm”. A straight leg raise (SLR), a proactive test for nerve root irritation, was
negative. He was referred to physical therapy (PT) and initially was a “no show” but later
attended and participated in PT. A chest X‐ray showed dextrothoracic scoliosis on 30 July 2002.
The CI initially improved with traction, but was noted to also have tightness of the hamstrings
as well as irritation with hip movement and over the iliotibial band. Although the record
documents continued increase in resistance, the range‐of‐motion (ROM) was noted to
decrease. The final PT note in the record, dated 16 October 2002, documented that the pain
was better with home transcutaneous electrical stimulation and that he slept through the night
better. His pain was noted to be decreased even though his function was unchanged. An
antalgic gait was noted and he used a cane with good ambulation. The ROM was significantly
reduced from the values obtained prior to entry into the DES process. No spasm was
documented. At the MEB examination on 17 August 2002, 4 months prior to separation, the CI
reported that he was unable to sleep secondary to his LBP and knee pain. The examiner noted
tenderness over L4‐S1 and a positive SLR. Sensation and reflexes were normal without
comment on motor function. The gait was noted as “soft.” The narrative summary dictated on
18 October 2002, 2 months prior to separation, but relied on a physical examination
accomplished 20 July 2002. The examiner noted that the CI had never missed work secondary
to his LBP, but that he took daily medicines including the occasional use of narcotics. He denied
radicular symptoms or incontinence. The examination of his back was remarkable for some
lumbar flattening and slightly reduced ROM in flexion. The neurological examination and gait
were normal and no atrophy was present. The CI failed to report for VA Compensation and
Pension examinations scheduled on 8 May 2003 and 12 May 2003. It did have the service
treatment records available for review, but continued a 10% rating granted in 1995.
The Board directs attention to its rating recommendation based on the above evidence. It
noted that the VA did not change the 1995 rating decision after review of the STRs and
continued the 10% rating and 5299‐5295 code. The PEB chose the same coding option and also
rated the condition at 10%. The Board then considered the rating. It noted that the two ROM
sets available, from prior to initiation of the MEB process, are markedly better that the two
obtained afterwards. It is obvious that there is a clear disparity between these examinations,
with very significant implications regarding the Board's rating recommendation. The Board
2 PD1200575
thus carefully deliberated its probative value assignment to these conflicting evaluations, and
carefully reviewed the service file for corroborating evidence in the 12‐month period prior to
separation. In assigning probative value to these somewhat conflicting examinations, the Board
notes that: the MEB measurements are consistent with the diagnostic and clinical pathology in
evidence; there is not a reasonable accounting for increased impairment in ROM in the fairly
short interval between the MEB and final two PT examinations. Therefore, based on all
evidence and associated conclusions just elaborated, the Board is assigning preponderant
probative value to the MEB evaluation. The Board noted that there was both limitation in
motion and painful motion noted on the MEB examination. The Board considered the different
coding options and determined that this best fit the description for a 20% rating under the code
5295. After due deliberation, considering all of the evidence and mindful of Veterans Affairs
Schedule for Rating Disabilities (VASRD) §4.3 (Resolution of reasonable doubt), the Board
recommends a disability rating of 20% 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 for rating chronic back pain was operant in this case and the
condition was adjudicated independently of that instruction by the Board. In the matter of the
back condition, the Board, by a 2:1 vote, recommends a disability rating of 20%, coded 5299‐
5295 IAW VASRD §4.71a. The minority voter recommended no recharacterization, but did not
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:
VASRD CODE RATING
5299‐5295
COMBINED
20%
20%
UNFITTING CONDITION
Chronic Low Back Pain…
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20121226, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXXXXXXXXX, DAF
Director
Physical Disability Board of Review
3 PD1200575
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXX, AR20130001612 (PD201200575)
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
XXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
4 PD1200575
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