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AF | PDBR | CY2013 | PD2013 00117
Original file (PD2013 00117.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX   CASE: PD1300117
BRANCH OF SERVICE: Army  BOARD DATE: 20131126
SEPARATION DATE: 20020724


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (91W20/Health Care Specialist) medically separated for back condition. The CI’s injuries occurred in 2000 moving heavy sandbags and lifting heavy furniture. She was treated non-surgically with medications and physical therapy, but did not adequately rehabilitate to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The chronic low back pain (LBP) condition 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%, with application of the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “I believe that I should have received a higher percentage rating for my back. I also believe that I should have been granted a percentage rating for my Right ankle fracture which I received playing basketball for the Army base team and my ankle has not been the same since. I have chronic sinus infections due to the fact that I was diagnosed with Sinusitis (I had a CT Scan performed while stationed in Hawaii). I also came up positive for Tuberculosis. Even though I received treatment for it I still have to be mindful that I am positive and have to get chest x-rays for the rest of my life to make sure that I don't have active TB.”


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 secondary to central disc herniation of the lumbosacral spine is addressed below. The right ankle, sinusitis and tuberculosis conditions, as per the contention, were not identified by the MEB or PEB; and, therefore are not within the DoDI 6040.44 defined purview of the Board. These and any other condition or contention not requested in this application remains eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20020412
 VA* - (~3 Mos. Post Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5295 10% DDD Lumbar Sacral Spine L4-5 and L5-S1 w/Chronic LBP 5293-5295 20%* 20021015
No Additional MEB/PEB Entries
 Other x 3 20021015
Rating: 10%
 Rating: 20%
* Derived from VA Rating Decision (VA RD ) dated 200 3 01 16.
Initial VARD 20020918 granted 10% rating based on service treatment records (STRs) .



ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected conditions continue to burden her; but, must emphasize that the Disability Evaluation System 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.

Low Back Pain Condition. STRs record complaint of intermittent back pain beginning in 2000 associated with heavy lifting developing into persistent back pain without radiation. A Magnetic Resonance Imaging (MRI) scan of the lumbar spine on 16 May 2001, revealed a central herniated L4-5 intervertebral disc without impingement of neural structures. Bulging, but not herniated, intervertebral discs were noted at L3-4 and L5-S1. An examination in the clinic on 24 May 2001 recorded negative provocative tests for radicular signs or symptoms along with normal strength, reflexes and gait. A 31 May 2001 physical therapy examination recorded forward flexion with fingers reaching the mid tibia (approximating 70 degrees of trunk flexion). Extension, side bending and rotation were “full.” There was no spasm and gait was normal. Provocative testing for radiculopathy was negative and lower extremity strength was normal. She was treated with physical therapy, rest and medication without improvement. Clinic evaluation on 31 October 2001 recorded chronic LBP worse with prolonged standing or sitting and with bending over. There was no pain radiation. The physical examination noted absence of muscle spasm, negative provocative testing for radicular signs, normal strength and reflexes and normal gait. Clinic note on 5 November 2001 indicated plans for MEB referral. Spine surgery evaluation concluded there was no indication for surgery. The MEB physical examination on 29 January 2002 (DD Form 2808) recorded “ROM 45 degrees anterior flexion” but did not specify whether this was lumbar spine or trunk motion. The orthopedic MEB narrative summary addendum examination on 30 March 2002, recorded back flexion with fingers reaching to mid shin (approximately 70 degrees), similar to the physical therapy examination the year previously. There was tenderness to palpation with normal spinal contour and normal gait. Provocative testing for radicular signs was negative and reflexes, sensation and strength were normal. The VA Compensation and Pension (C&P) examination on 15 October 2002, over 2 months after separation, recorded complaint of chronic LBP without radiation exacerbated by bending, twisting, heavy lifting and prolonged standing or sitting. She denied any loss of strength or changes with her gait. On examination of the lumbar spine, there was no radiating pain, but tenderness with spasm was noted. Flexion of the lumbar spine was limited by report of pain to 45 degrees. Extension was 25 degrees, right and left lateral flexion was 25 degrees, and right and left rotation 30 degrees all limited by pain. There was no further limitation by fatigue, weakness, lack of endurance, or incoordination. Posture and gait were normal. Lower extremity strength and reflexes were normal. Provocative testing for radicular signs was negative.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10% using the VASRD code for lumbar strain (5295). The VA initially granted a 10% rating (coded 5293-5295) based on STRs but subsequently increased the rating to 20% (coded 5293-5295) citing moderate limitation of motion and spasm based on the VA C&P examination in October 2002. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004. The Board must correlate the above clinical data with the 2002 rating schedule: applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293 (intervertebral disc syndrome) and 5295 (lumbosacral strain). The Board considered the range-of-motion examinations at the time of the MEB and the VA C&P examination nearly 3 months after separation for rating under code 5292. The flexion reported by the orthopedic surgeon was reported in terms of reach with the fingertips which encompasses entire trunk motion. The CI’s ability to reach to mid-shin approximates 70 degrees of trunk (or combined thoracic spine and lumbar spine) motion. The 45 degrees of flexion reported by the C&P examiner suggests moderate limitation but the examination was stated to be of the lumbar spine segment not the combined lumbar and thoracic segments. At the time of the VA C&P examination, the use of the combined thoracic and lumbar spine motion for rating under the VASRD was not in effect. The Board considered that it was likely the examiner was reporting lumbar motion consistent with the VASRD in effect at the time rather than combined lumbar and thoracic motion. Normal for lumbar flexion was not specified by the VASRD in the effect at the time; but the limitation of lumbar flexion to 45 degrees reflects some limitation, but would not be considered moderate with regard to functional impairment. The movement in other planes at the VA C&P examination were mildly reduced, but were improved from the time of the orthopedic examination. There was no history of intervening injury or worsening to indicate the back motion reported by the VA C&P examiner was in fact a reduction in motion since the time of the orthopedic examination. The Board also noted the physical therapy examination a year prior to the orthopedic examination with the same findings indicating stability over time. The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293. Although intervertebral disc disease with herniation was demonstrated on MRI, there were no symptoms or objective findings of radiculopathy to support a rating higher than 10% under this code. There was no evidence of a separate unfitting or ratable peripheral nerve impairment due to radiculopathy. The Board considered the rating under the code 5295 used by the PEB and VA. There was characteristic pain on motion to support the 10% rating, however the Board did not conclude the orthopedic MEB examination or the VA C&P examination supported a higher rating using 5295. While the C&P examiner noted spasm on palpation, there was no evidence of spasm on flexion or unilateral loss of lateral spine motion which was mildly decreased in both directions. The normal spine contour, normal posture, and normal gait also indicate absence of significant muscle spasm. 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 chronic LBP 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 chronic LBP 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION VASRD CODE RATING
Chronic Low Back Pain 5299-5295 10%
RATING 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130407, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





        
XXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-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 , AR20140003691 ( PD201300117 )

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                                                  XXXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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