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AF | PDBR | CY2013 | PD2013 00863
Original file (PD2013 00863.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxxxxx              CASE: PD1300863 
BRANCH OF SERVICE: Army          BOARD DATE: 20131030
SEPARATION DATE: 20050228                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92G/Food Service) medically separated for chronic back pain. The CI experienced multiple injuries to her back, including falling off the back of a Humvee with her rucksack. She was treated with nonsteroidal anti-inflammatory drugs and physical therapy (PT). However, the back condition did not improve adequately to meet the requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB). The chronic back pain was determined to be medically unacceptable and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (chronic neck pain and asthma) for PEB adjudication. The PEB adjudicated chronic back pain as unfitting, rated 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “Mechanical low back pain should have been more than 10%. I also was unaware that I could list my knees as a part of the med board, along with asthma and depression. Sarcoidosis and Rheumatoid arthritis. ”


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 pain is addressed below. The requested asthma condition, which was determined to be not unfitting by the PEB, is likewise addressed below. The requested knee, depression, sarcoidosis and rheumatoid arthritis conditions were not identified by the MEB or PEB and are not within the defined purview of the Board. Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.


RATING COMPARISON :

Army IPEB – dated 20050107
 VA – Service Treatment Record (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Back Pain 5299-5237 10% Mechanical Low Back Pain 5237 20% STR
Chronic Neck Pain Not Unfitting Chronic Neck Pain NSC STR
Mild Persistent Asthma Not Unfitting Asthma NSC STR
No Additional MEB/PEB Entries
 Other x 16
Rating: 10%
 Combined Rating: 40%
Derived from VA Rating Decision (VA RD ) dated 200 50914 ( most proximate to date of separation [ DOS ] )


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which her conditions continue to burden her and the significant impact they have had on her quality of life. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a service member’s career and then only to the degree of severity present at the time of separation. The Department of Veterans Affairs; however, is empowered to compensate for service-connected conditions and to periodically re-evaluate them for the purpose of adjusting the disability rating should the degree of impairment change over time.

Low Back Pain (LBP). The CI had a long history of back pain. She was treated with multiple therapeutic modalities including: PT, chiropractic spinal manipulation, electrical stimulation and deep tissue myofascial massage. However, her back pain persisted and a MEB was initiated. Her MEB physical examination (PE) was in November 2004. At that exam, there was tenderness to palpation (TTP) in the lumbar paraspinal areas. Toe walk and heel walk were both normal. Lumbar range-of-motion (ROM) was measured and recorded by PT. Flexion was listed as 22/33. The examiner was not clear about what these numbers meant. The Board considered that 22/33 could mean 22 degrees of active lumbar flexion and 33 degrees when lumbar flexion was assisted by the examiner; or, it could mean 33 degrees of active lumbar flexion with pain beginning at 22 degrees. The results of the ROM evaluation are summarized in the chart below. IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, spinal ROM measurements are rounded to the nearest five degrees.

Thoracolumbar ROM
(degrees) 		MEB ~ 16 wks . Pre-Sep
(20 041110 )
Flexion (90 Normal) 20/35
Extension (30) 15/25
R Lat Flexion (30) 40/55
L Lat Flexion (30) 35/50
R Rotation (30) 55/60
L Rotation (30) 70/70
Combined (240) 155/180
Comment (see text above)

The Board carefully reviewed all of the evidentiary information available and directs attention to its rating recommendation based on the above evidence. The Army PEB and the VA chose different coding and rating options for the LBP condition. The PEB coded it 5299-5237 (analogous to lumbosacral strain) and assigned a rating of 10%. The VA used code 5237 (lumbosacral strain) and rated it 20%. Thoracolumbar forward flexion was listed as “22/33” at the November 2004 MEB exam. Besides the uncertainty and lack of clarity noted above, there were other inconsistencies in the PE which caused the Board to question its validity and probative value. A 22 degree limitation of forward flexion would almost certainly preclude certain activities of daily living (ADLs) such as sitting in a chair, riding in a car or getting dressed. The record does not indicate that the CI was unable to sit in a chair, ride in a car or dress herself. The Board determined that the inconsistencies in the MEB exam caused diminution in the validity and probative value of that PE. After due deliberation, the Board determined that a rating of 20% was warranted. The Board also considered the matter of peripheral neuropathy. After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties. The CI’s neurological symptoms were subjective only. Therefore, there was no unfitting radiculopathy present at the time of separation. Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the LBP condition.

Contended PEB Condition. The CI was diagnosed with asthma in 1999 and was treated with anti-asthma medications. At the time of her MEB physical exam, the chest and lungs were normal. Chest x-ray was normal. Pulmonary function tests were normal. The examiner described the pulmonary condition as mild persistent asthma, controlled and medically acceptable. Asthma was not profiled, implicated in the commander’s statement or judged to fail retention standards. The PEB adjudicated the asthma condition as not unfitting, not rated. This condition was thoroughly reviewed by and considered by the Board. The Board’s main charge is to assess the fairness of the PEB’s adjudication that the asthma condition was not 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. A thorough review of the record revealed insufficient evidence that the asthma condition caused any significant interference with satisfactory performance of her required military duties. 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 asthma condition. The CI’s asthma condition was indeed “not unfitting” at the time of separation. The Board concluded therefore that this 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. As noted above, PEB reliance on the USAPDA pain policy may have been operant in this case and the back pain condition was adjudicated independently of that policy by the Board. In the matter of the chronic back pain, the Board unanimously recommends a disability rating of 20%, coded 5299-5237, IAW VASRD §4.71a. In the matter of the contended asthma condition, the Board unanimously recommends no change in the PEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration.      


RECOMMENDATION: The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic back pain, without neurologic abnormality 5299-5237 20%
RATING 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130607, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                          

         xxxxxxxxxxxxxxxxxxx, 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 xxxxxxxxxxxxxxxxxxxxxxx, AR20140002279 (PD201300863)


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 20% 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                                                  xxxxxxxxxxxxxxxxxxxxxx
                                                      Deputy Assistant Secretary
(Army Review Boards)

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