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AF | PDBR | CY2013 | PD-2013-02532
Original file (PD-2013-02532.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02532
BRANCH OF SERVICE: Army  BOARD DATE: 20140826
SEPARATION DATE: 20080114


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (94F/Computer/Detection Systems Repairer) medically separated for a low back condition. The 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 low back condition, characterized as “lumbar back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “left paracentral focal disc protrusion at L5-S1, status post microdiskectomy” as unfitting, rated 0%. The CI made no appeals and was medically separated.


CI CONTENTION : “ I have had to have an additional surgery on my back after being discharged. I still have pain and my back condition limits me from enjoying a normal life. I am limited to lifting no more than 20 pounds and standing in 30 minute increments or less. Somedays I have problems even tying my own shoes due to the pain and uncomfortableness of this condition. ”


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 low back condition is addressed below; 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 20071218
 VA - (One Mo. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Left Paracentral Focal Disc Protrusion at L5-S1, Status Post Microdiskectomy 5243 0% Degenerative Disc Disease of the Lumbar Spine 5243 10% 20080220
Other x 0 (Not in Scope)
Other x 7 (Not in Scope) 20080220
Combined: 0%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 80327 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Low Back Condition. The CI first presented for low back pain (LBP) on 17 February 2005 after lifting a heavy object. He was treated with medications and chiropractic therapy with improvement and given a permanent L2 profile. He again presented with severe LBP in February 2007 which did not resolve with conservative management. A magnetic resonance imaging (MRI) performed on 5 July 2007 was significant for a probable herniated disc at L5-S1. He was seen in orthopedics on 30 August 2007 and noted to have a normal gait and neurological examination; provocative tests for radicular irritation were positive. A repeat MRI on 27 September 2007 confirmed a herniated disc at L5-S1 with nerve root impingement of the left S1 nerve root and probable impingement on the right as well. He was not thought to be a surgical candidate (cigarette smoker and overweight) and MEB recommended. The narrative summary was dated 28 September 2007, just over 3 months prior to separation. He reported continued LBP with some radiation into both lower extremities. His examination was unremarkable other than a reduction in the range-of-motion (ROM) as charted below. At the VA Compensation and Pension (C&P) examination performed the same day, the CI reported back pain since 2005. On examination, his posture and gait were normal. The examination of the spine was normal without spasm. The ROM was normal and pain was only noted with extension, at 20 degrees. DeLuca criteria were negative. A second VA C&P examination was accomplished on 20 February 2008, just over a month after separation. The CI reported daily pain without flares or the use of an assistive device. His weight had increased 19 pounds from the MEB examination 4 months earlier to 279 pounds for the 69 inch applicant. His gait was normal and he was without spasm or guarding. The ROM was painful in all planes and the values charted below are indicative of the point pain began. The neurological examination was normal. No comment was made regarding the effect the increased weight had on the ROM and the examiner did not note if the CI could have continued past the point pain began. 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)		 PT ~4 Mo Pre-Sep NARSUM ~3 Mo. Pre-Sep VA C&P ~ 3 Mo. P re -Sep VA C&P ~1 Mo. Post-Sep
Flexion (90 Normal) 50 70 90 60
Combined (240) 185 -- 240 120
Comment Painful motion Nml neurological examination Nml neurological examination; Pain with extension at 20 degrees Painful motion; no spasm ; stopped at onset of pain, no comment on if CI could have continued
§4.71a Rating 20% 10% 1 0% 20%

The Board directed attention to its rating recommendation based on the above evidence. The PEB and VA both used the code 5243 for intervertebral disc syndrome, but rated the condition at 0% and 10%, respectively. A subsequently VA decision review officer adjudication on 25 June 2009 determined that a clear and unmistakable error had been made at the original adjudication and raised the rating to 20% retroactive to 15 January 2008, the day after separation, until 1 March 2009 when it again decreased to 10% based on the 26 February 2009 VA C&P (per the VA rating decision). At that examination, which is not in evidence, the flexion was 85 degrees and all other values normal. The Board considered the evidence. The rating clearly met or exceeded the 10% criteria at each examination which included ROM values. The Board then considered if the clinical picture better fit a 10% or 20% disability rating. It noted that the two examinations proximate to separation and prior to separation both supported a 10% rating. The VA C&P examination a month after separation did not document if the measurements were for the limits of the ROM or the onset of pain. This reduced the probative value of this examination and the Board relied on the two examinations 3 months prior to separation for rating purposes. It also noted that the CI had a normal gait and neurological examination as well as the near normal flexion at the VA evaluation on 26 February 2009. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% 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. 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 condition, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a. 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:

UNFITTING CONDITION VASRD CODE RATING
Left Paracentral Focal Disc Protrusion at L5-S1… 5243 10%
COMBINED 10%


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




                 
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150005535 (PD201302532)
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 10% 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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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