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AF | PDBR | CY2013 | PD-2013-01844
Original file (PD-2013-01844.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-01844
BRANCH OF SERVICE: Army  BOARD DATE: 20140527
SEPARATION DATE: 20040404


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (35M/Radar Repair) medically separated for low back pain (LBP). The LBP condition could not be adequately rehabilitated to meet the physical 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 back condition, characterized as “lumbar spine: low back pain with DDD,” and failing to meet retention standards, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions for PEB adjudication. The nose and flat feet conditions, characterized as “allergic rhinitis” and “pes planus” were determined to meet retention standards. The Informal PEB adjudicated “chronic low back pain with degenerative disc disease at L5/S1” as unfitting, rated 10%, with likely application of the US Army Physical Disability Agency pain policy. The remaining conditions ( nose and feet) were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “A few years after I was found unfit to stay in the Army, I was evaluated by the VA Hospital and they granted a compensation rating much higher than 10%.”


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. In addition, the not unfitting nose condition contributed to a higher VA rating cited by the CI; therefore, these are also in scope. All other VA conditions are not 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 20040211
 VA - (2 Yrs., 8 Mos. Post-Separation) *
Condition
 Code Rating Condition Code Rating Exam
Chronic Lower Back Pain 5237 10% Low Back Condition 5245 10% 20061207
Allergic Rhinitis Not Unfitting Sinusitis, Chronic 6513 10% 20061226
No Other Conditions
 Other x 3 20061207
Rated: 10%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 200 70307 ( most proximate to date of separation [ DOS ] ) , although it is almost 3 years past DOS .



ANALYSIS SUMMARY:

Chronic Lower Back Pain (LBP) Condition. The records show that the CI was treated for LBP beginning in his first year of service. Conservative management was not adequate and a magnetic resonance imaging (MRI) on 5 December 2000 showed a small annular disc bulge at L3-4 and a moderate bulge at L4-5. These were not thought to be significant. He continued to have pain and reclassification was recommended which was into radar repair. He continued to have pain though. On 28 October 2003, he requested medical clearance for ROTC. On 6 November 2003, an MRI was significant for L5-S1 disc protrusion. He was then seen in orthopedics on 21 November 2003 and noted to have a 3-year history of LBP without known trauma or injury. No significant radiation of symptoms was noted nor was incontinence of either the bowel or bladder. On examination, his gait was normal and the back non-tender without deformity. The range-of-motion (ROM) was pain free and noted as good for lateral bending and rotation. Extension was to 30 degrees (normal) and flexion to his ankles (also normal). The neurological examination was normal other than decreased sensation on the right lateral (outside) leg and first web space of the left foot. A permanent L3 profile was issued and the CI entered into the MEB process. X-rays of the lumbar spine were normal 3 weeks later. The orthopedic narrative summary (NARSUM) was dated 16 December 2003, a little over 3 months prior to separation. It referred back to the prior examination (above) and noted that the CI did not meet retention standards for the back. The general NARSUM was dated 28 January 2004 and referenced an examination performed by the same physician 2 weeks earlier. The CI reported that the LBP began in basic training. The examiner documented that the CI had been evaluated by a neurosurgeon who determined that surgery was not indicated. Also, she noted that the CI had several injections to the back (type unknown) without benefit. The CI had been placed on quarters for LBP twice, but it been almost 2 years since the second period of quarters at the time of the dictation. He reported that the pain was constant and aggravated by sitting more than 20 minutes, standing over 15, repetitive activity, and sleeping in the wrong position. On examination, there was tenderness over the lumbo-sacral spine without spasm or deformity. Provocative testing for radicular irritation was negative. The ROM is recorded below and shows progressive loss over three repetitions of flexion, but relatively stable measurements in the other planes of motion. The motor examination was normal. The reflexes on the left were increased at the knee and decreased at the ankle compared to the right. Sensation was decreased on the right in an L4 and S1 mixed distribution. At the VA Compensation and Pension (C&P) examination,performed on 7 December 2006, 32 months after separation, the CI reported intermittent LBP with periodic remissions. He reported using a brace, but this was apparently for his knee. He could walk over 1/4 mile, but not over a mile. The gait and posture were normal. He denied incontinence. On examination, there was neither spasm nor atrophy. The knee reflex was reduced on the right compared to the left and symmetric for the ankles. Sensation was reduced in both lower extremities in a non-dermatomal pattern (that is, not consistent with impairment from back disc.) The ROM was normal and pain free without DeLuca criteria present. Incapacitation was not recorded. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below:

Thoracolumbar ROM
(Degrees)		 MEB ~ 2 Mo. Pre-Sep VA C&P ~ 32 Mo. Post-Sep
Flexion (90 Normal) 75/65/55 0-90
Combined (240) 175 240
Comment ROM Decrease with DeLuca Pain free ROM; Neg DeLuca
§4.71a Rating 20% 0%









The Board direct s attenti on to its rating recommendation based on the above evidence . The PEB adjudicated the LBP condition at 10% using the 5237 code for lumbosacral strain. The VA, using the C&P distant from separation, also adjudicated the back at 10%, but used the 5243 code for intervertebral disc syndrome. The VA also awarded disability ratings for left and right lower extremity radiculopathy coded 5243 and 8520, sciatic nerve , at 10% each for the presence of diminished sensation even though it was in a non-radicular pattern and diminished reflexes although the ankle reflexes were symmetric . The Board first considered the rating for the back. It noted that the flexion decreased at the MEB examination with repetition, but that all values were less than what was recorded by the orthopedist weeks earlier and the VA examiner seve ral years later. This is also less than what would be expected from the pathology in evidence. The Board determined that the orthopedic examination had a higher probative value and based the rating recommendation on it. It supports no higher than the 10% adjudicated by the PEB. 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 LBP condition.

The Board also considered if an unfitting radiculopathy condition existed at separation. It noted that the motor examination was consistently normal. No duty limitations from the sensory loss were evident in the records available for review. Moreover, the sensory changes were not entirely consistent between the orthopedic examiner and the NARSUM physician although there was some overlap. By the time of the VA examination, the sensory changes did not follow a dermatomal distribution as would be expected in a radiculopathy. The Board concluded, therefore, that this condition could not be recommended for additional disability rating for either lower extremity.

Contended PEB Conditions. The MEB determined that the allergic rhinitis condition met retention standards. The VA rated chronic sinusitis, rather than allergic rhinitis, at 10%. The Board’s main charge is to assess the fairness of the PEB’s determination that these contended not unfitting conditions were unfitting. 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. The condition was neither profiled nor implicated in the commander’s statement. It was not judged to fail retention standards. It was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that it 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 contended allergic rhinitis condition and so no additional disability rating is 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended allergic rhinitis condition, the Board unanimously recommends no change from the PEB determinations as not unfitting. In the matter of the radiculopathy condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131008, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                 
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review


 SAMR-RB                                                                         


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


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150001034 (PD201301844)

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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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