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AF | PDBR | CY2013 | PD-2013-02774
Original file (PD-2013-02774.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02774
BRANCH OF SERVICE: Army  BOARD DATE: 20141118
SEPARATION DATE: 20070215


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a drilling Reserve SSG/E-6 (92Y3O/Supply Sergeant working as a Drill Sergeant) medically separated for back pain. The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The profile allowed for an alternate aerobic event to satisfy physical fitness standards. “Chronic low back pain (LBP) with lumbar degenerative disc disease (DDD) and L4-L5 herniated nucleus pulposus (HNP),” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated his LBP as unfitting, rated 10%. The CI made no appeals and was medically separated.


CI CONTENTION: “Conditions has increased in severity.”


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 back condition is addressed below; and, 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.

The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment and worsening severity with which his service-incurred condition continues to burden him. It is a fact, however, 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. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20061229
 VA - (9 Months Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain… 5237 10% Degenerative Joint Disease Lumbar Spine… 5242 20% 20071106
Other x 0 (Not In Scope)
 Other x 8
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 200 71212 ( most proximate to date of separation)


ANALYSIS SUMMARY:

Low Back Condition. The CI first reported LBP in September 2005 after jumping out of a military vehicle. A radiology workup consisting of a magnetic resonance image, bone scan and lumbar myelogram revealed multi-level spinal disc protrusions with right-sided L5 nerve root compression. Initially, neurologic consultation did not recommend surgery, but later that did become an option and was declined by the CI preferring a trial of local injections. His primary treatment was then re-directed to physical therapy. The MEB narrative summary exam (3.5 months prior to separation), noted constant LBP rated 3/10 pain scale with “some numbness” in the right lower extremity. Symptom aggravators included bending, lifting or carrying weight, twisting and impact activities. He reported improvement of his radicular symptoms with rest and physical therapy, but the LBP continued. All parameters of the physical examination (PE) were normal except spinal tenderness and painful motion. The diagnosis was chronic LBP with lumbar DDD and L4-L5 HNP. His permanent profile list a single diagnosis of chronic LBP and the commander’s statement noted his inability to perform MOS duties due to the back condition.

At the VA Compensation and Pension exam (9 months after separation), the CI reported constant LBP with radiation into his right leg and toes. The PE revealed an antalgic gait and decreased painful motion. There was no evidence of spasms, atrophy, guarding, or weakness. There was no VA Schedule for Rating Disabilities (VASRD) defined incapacitating episodes of back pain. The goniometric range-of-motion (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 for MEB ~5 Mo. Pre-Sep
(20060919)
Ortho ~4.8 Mo. Pre-Sep
(20060927)
VA C&P ~ 9 Mo. Post-Sep
(20071106)
Flexion (90 Normal)
 75 Full active ROM 45
Combined (240)
 220 165
Comment
 painful motion ;
tenderness		 painful motion painful motion;
(+) antalgic gait
§4.71a Rating
 10% 10% 20%

The Board directed attention to its rating recommendation based on the above evidence. Although the service and VA titled the unfitting back condition slightly differently, they both utilized similar primary codes of 5237 (lumbosacral strain) and 5242 (degenerative arthritis) respectively; with the PEB citing pain exacerbations with duty performance failures and the VA as limited ROM. Board members first acknowledged the ROM values reported by the VA examiner, (9 months after separation) were significantly worse than those reported in the pre-separation exams having significant implications regarding the Board's final rating recommendation. The Board thus carefully deliberated its probative value assignment to these differing evaluations and carefully reviewed the file for corroborating evidence in the 12-month period prior to separation. There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements. Board members agreed that the time proximity of the MEB and ortho exams more closely indicated the CI’s condition near the time of separation and therefore placed greater probative value upon these examinations as compared to the VA exam. There was ample demonstration of painful motion to fulfill §4.59 criteria for a 10% rating as well as the combined ROM and or thoracolumbar flexion. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board agreed that a disability rating of 10% for the chronic LBP condition was appropriately recommended in this case.

The Board additionally considered if the symptomatic right lower extremity radiculopathy symptoms warranted additional disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The Board concluded therefore that the radiculopathy condition could not be recommended for additional disability rating.


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 low back pain condition and IAW VASRD §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 20131219, 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 , AR20150007065 (PD201302774)

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

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