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AF | PDBR | CY2013 | PD2013 02097
Original file (PD2013 02097.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1302097
BRANCH OF SERVICE: Army  BOARD DATE: 20140509
SEPARATION DATE: 20050406


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantry) medically separated for a chronic low back pain (LBP) condition. The LBP 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 back condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded a chronic neck pain condition. The Informal PEB adjudicated “chronic non-radiating low back pain” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The neck condition was considered by the PEB and found not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “–Lifestyle/Work restrictions due to neck and back. – Knees have worsened w/significantly less physical activity since Service. Please note that I have stopped getting shots years back because after my last shot at the VA Medical Center in Cheyenne, Wyoming, I could not move my legs for nearly 20 minutes. This scared me & I decided I would live w/the pain since that was the only treatment that made a difference.”


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 applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Army Board for Correction of Military Records (BCMR). The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veteran Affairs (DVA) but not determined to be unfitting by the PEB. However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.


 RATING COMPARISON :

Service IPEB – Dated 20050308
 VA - (1 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Back Pain 5299-5237 10% Lumbosacral Strain 5237 10% 20050525
Chronic Neck Pain Not Unfitting DDD C5-C6 5243 10% 20050525
No Additional MEB/PEB Entries
 Other x 1 20050525
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 20050629 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Back Pain Condition. The first record in evidence for the LBP condition are from 18 July 2003 when the CI presented with a 5-year history of LBP without antecedent trauma recorded shortly after arrival in theater for deployment. Plain X-rays of the back were normal. Conservative measures were unsuccessful and he was evacuated to Landstuhl, Germany for further evaluation. A magnetic resonance imaging (MRI) of the lumbar spine on 19 May 2003 was normal. He was then air evacuated to home station due to LBP refractory to conservative measures. He was again treated conservatively without resolution of his symptoms. A neurosurgical evaluation on 2 August 2004 was unremarkable. A repeat MRI on 23 September 2004 was normal. At an orthopedic follow-up 2 weeks later, the CI was entered into the DES process. An MRI of the thoracic spine on 7 January 2005 was also normal. At the MEB examination on 18 November 2004, the CI reported chronic LBP without improvement with treatment. The MEB physical examiner documented tenderness to palpation of the lower back and decreased range-of-motion (ROM) with forward flexion. The narrative summary was dated 24 January 2005 and referenced ROM values obtained in physical therapy (PT) 2 months earlier. These are charted below. The CI reported that his symptoms preceded the deployment, but were worsened by the wear of the protective gear and had been refractory to treatment including duty limitations. He did enjoy some relief from one steroid injection in the back area. The neurological examination was normal without radicular symptoms although one provocative test was uncomfortable. Two of five maneuvers, which are not expected to elicit pain, were positive. He was not thought to have a condition amendable to surgical intervention. At the VA Compensation and Pension (C&P) examination, performed a month after separation, the CI reported continued LBP with occasional radiation into one or both legs. Incapacitation was not recorded. On examination his gait and station were normal and movement easy without use of an assistive device. The neurological examination was normal. Some spasm was present, but the contour preserved. Motion was painful, but DeLuca criteria were not met as, with repetition of movement, motion increased before it was painful. 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 ~5 Mo. Pre-Sep VA C&P ~ 6 Wks. Post-Sep
Flexion (90 Normal)
 50 90
Combined (240)
 125 230
Comment
 S igns of non-organic pain Nml gait and contour
§4.71a Rating
 20% 10%

The Board directed attention to its rating recommendation based on the above evidence. The PEB and VA both rated the back condition at 10% utilizing the 5237 code, lumbosacral strain. The Board noted that the MEB ROM limitations actually corresponded to a higher 20% rating and considered the two examinations. The VA examination was closer to separation. The PEB examiner noted the presence of pain from maneuvers not expected to be painful. The action officer opined that the ROM values obtained by the VA examiner are more consistent with the demonstrated pathology on physical and radiographic examinations, more proximate to separation, and absent signs of pain from maneuvers not expected to be painful. Accordingly, the Board assigned a higher probative value to the VA C&P examination which supports the 10% rating adjudicated by the PEB. 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 LBP condition.

Contended Chronic Neck Pain and Mental Health Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that neck condition was not unfitting. In addition, since the CI replied to the mental health mailing, an implied contention for a MH condition is assumed. 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.

Neck Condition. The neck pain was not profiled, although in the commander’s statement the neck condition was cited. The MEB examiner opined that the neck pain, while impacting function, would not cause the CI to fall below retention standards as a separate condition (absent the back pain). The neck was condition not judged to fail retention standards by the MEB. The neck condition was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance. Therefore, no additional disability rating is recommended.

Mental Health Condition. The Board then considered the mental health condition and the appropriateness of any changes in the MH diagnoses and a disability rating recommendation in accordance with VASRD §4.130. The MEB did not forward an MH diagnosis to the PEB for adjudication. None was found in the record. The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process. This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project. No MH condition was profiled nor was one implicated in the commander’s statement. Neither the MEB nor the PEB considered an MH condition. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend the addition of an MH condition as an unfitting condition at separation. Therefore, no additional disability rating is recommended.


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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended neck condition, the Board unanimously recommends no change from the PEB determination as not unfitting. In the matter of the implied contended MH condition, the Board unanimously agrees that it cannot recommend one for additional disability rating. 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, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Non-Radiating Low Back Pain 5237 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131022, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX , AR20140014638 (PD201302097)

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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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