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AF | PDBR | CY2013 | PD-2013-02385
Original file (PD-2013-02385.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02385
BRANCH OF SERVICE: Army  BOARD DATE: 20141030
SEPARATION DATE: 20050804


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (11B/Infantryman) medically separated for low back pain (LBP). The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). His profile allowed for an alternate aerobic event to satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “spondylosis, multilevel, w/disc bulge L4-L5, L5-S1” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated chronic LBP as unfitting, rated 10%. The CI made no appeals and was medically separated.


CI CONTENTION: CI has made a lengthy contention which was reviewed by the Board and considered in its recommendations.


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 is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. The implied contention for the VA service-connected loss of hearing was not identified by the PEB, and thus is 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 20050527
 VA – (2½ mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5242 10% Spondylosis, With Herniated Nucleus Pulpous, Lumbar Spine 5243-5242 10% 20050519
Other x 0 (Not in Scope)
 Other x 2 20050519
Rating: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 200 50908 ( most proximate to date of separation [ DOS ] )


ANALYSIS SUMMARY: 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 (DES) 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, operating under a different set of laws.


The Board acknowledges the CI’s contention that he suffered from hearing loss. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the DES operates. While other conditions may have been present, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation. The VA, however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions and adjust the Veteran’s disability rating should the degree of impairment change over time.
Low Back Pain (LBP). This CI has had a long history of LBP dating back to September 2000. From 2001 to 2003, he experienced intermittent problems with back pain and was treated mainly with medication. He continued to perform physical training, road marches and other duties associated with his MOS. In 2003, he injured his back during combat operations in Iraq. A magnetic resonance imaging in August 2004 showed lumbar spondylosis at multiple levels, with disc bulging at L4-L5 and L5-S1. In November 2004, the CI was referred for a MOS/Medical Retention Board (MMRB). The MMRB was in favor of reclassification, with provision that he could meet weight standards. The CI was not able to get his weight down and an MEB was initiated. The MEB physical examination was on 31 March 2005. At that time, examination of the back revealed some mild tenderness to palpation (TTP) over the lumbosacral region. Heel toe stand and walk was normal. Deep tendon reflexes were intact and symmetrical. Straight leg raise (SLR) to 60 degrees was unremarkable bilaterally. Thoracolumbar range-of-motion (ROM) was measured and is summarized in the chart below.

On 19 May 2005, 11 weeks prior to separation, the CI had a VA Compensation and Pension (C&P) exam. At that exam, there were no complaints of radiating pain on movement. Muscle spasm was absent and no TTP was noted. SLR was negative bilaterally. Spinal function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There were no signs of intervertebral disc syndrome with nerve root involvement. Neurological exam (motor and sensory) of the lower extremities was normal. The examiner wrote: “For the claimant’s claimed condition of CHRONIC BACK CONDITION, there is no diagnosis because there is no pathology to render a diagnosis.” The ROM evaluations which the Board weighed in arriving at the rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)		 PT ~ 9 mos . Pre-Sep
(2004 1103 )
 MEB ~ 4 mos . Pre-Sep
(20050331)
 VA C&P ~ 2½ mos . Pre-Sep
(20050519)
Flexion (90 Normal) 75 60 90
Extension (30) 30 25 30
R Lat Flexion (30) 30 25 30
L Lat Flexion (30) 30 25 30
R Rotation (30) 30 40 30
L Rotation (30) 30 40 30
Combined (240) 225 195 240
invalid font number 31502
The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA both assigned a 10% disability rating. The Board considered the data from the back examinations noted above. The May 2005 C&P exam was just 11 weeks prior to separation and therefore had greatest probative value. At that exam, thoracolumbar ROM was normal. The Board determined that the CI’s lower back condition was essentially non-compensable based on the VA Schedule for Rating Disabilities (VASRD) §4.71a General Rating Formula for Diseases and Injuries of the Spine. However; IAW VASRD §4.40 (Functional loss), when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled. A 10% rating is warranted when there is satisfactory evidence of functional loss and disability due to painful motion. There was no path to a rating higher than 10% for the back condition since there was not sufficient evidence of a significantly disabling spinal abnormality that would justify a higher rating.

The Board also considered the matter 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. Therefore, the Board concluded that there was no unfitting neuropathy present at the time of separation. After due deliberation, the Board determined that a disability rating of 10% was appropriate. Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the chronic unfitting LBP.

Other Contended Condition. The CI has contended that he suffered from hearing loss. As noted above, this condition was not listed on DA Form 3947 (Medical Evaluation Board Proceedings) or DA Form 199 (PEB Proceedings). Hearing loss is not within the Board’s scope of review.


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 chronic LBP condition and IAW VASRD §4.40 and §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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131113, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                 
XXXXXXXXXXXXXX
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 XXXXXXXXXXXXXX, AR20150007107 (PD201302385)

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

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