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AF | PDBR | CY2014 | PD-2014-00268
Original file (PD-2014-00268.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2014-00268
BRANCH OF SERVICE: Army  BOARD DATE: 20141021
SEPARATION DATE: 20060927


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (21B/Combat Engineer) medically separated for a back condition. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but could perform an alternate physical fitness test. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “chronic low back pain (LBP) with herniated nucleus pulposus at L3/L4 and L5/Sl,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. Two other conditions were submitted by the MEB (restless leg syndrome as not meeting retention standards and mild persistent asthma as meeting retention standards). The Informal PEB adjudicated “low back pain” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The two remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “Separated halfway through retirement in combat arms with three tours. Other conditions found after separation such as PTSD etc…, injury was combat related.”


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 is addressed below. The contended posttraumatic stress disorder and remaining VA conditions are not 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 20060622
 VA - (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
LBP 5243 10% Lumbar Spine Disc Herniation’s 5243 20% 20070105
Other x 2 (Not In Scope)
 Other x 3
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 20070104 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. Disability compensation may only be offered for those conditions that cut short the member’s service career. The Board’s role is thus 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 ratable severity at the time of separation.

Low Back Pain Condition. The narrative summary notes the CI developed LBP in December 2003, 33 months prior to separation, when he heard a “pop” in his back and felt immediate pain during combat training. Lumbar X-rays performed in November 2004 were normal except for reported lumbar spina bifida occulta (developmental abnormality of the spine). Magnetic resonance imaging (MRI) performed in December 2004 noted disc bulges at L3-S1 which contacted the spinal canal with mild displacement noted at L3/L4 and L5/S1, without nerve contact, and spina bifida occulta was not confirmed. The CI deployed again in January 2005 and continued with back pain. Repeat lumbar MRI in January 2006 noted a tear of the ligament surrounding the L3/L4 disc (annular tear) with disc herniation causing moderate spinal stenosis and disc herniation at L5/S1 increased in size, which contacted the left nerve root. Neurosurgery was consulted and did not recommend surgery.
At the MEB examination 7 June 2006, approximately 3 months prior to separation, the CI reported constant back pain increased by activity and use of oral anti-inflammatory and muscle relaxer medications as needed. The MEB physical exam noted a normal gait. Lumbar range-of-motion (ROM) was flexion of 64 degrees (normal 90 degrees) and combined ROM of 170 degrees (normal 240 degrees). There was tenderness to palpation (TTP) along the lower thoracic and lumbar spine and sacroiliac joints bilaterally, with muscle spasms noted. Lower extremity (LE) strength, sensation, and reflexes were normal bilaterally and straight leg raise (SLR) was negative.
At the VA Compensation and Pension (C&P) examination performed approximately 3 months after separation, the CI reported constant LBP without radiation or other associated symptoms, increased by activity but without flare-ups. The CI reported losing 30 days of work due to back pain, but was noted to be unemployed since separation and attending school full time. The VA examiner noted there had been no “doctor ordered periods of incapacitation in the last 12 months.” The VA exam noted a normal gait and posture. There was no TTP of the lumbar spine and no muscle spasm present. LE strength, sensation and reflexes were normal and SLR testing was negative bilaterally. Lumbar ROM was flexion of 60 degrees and combined ROM of 210 degrees. The CI reported pain with all ROM. The examiner indicated there was no objective evidence of pain with the exam and no additional loss of ROM with ROM repetition due to pain, joint fatigability, instability, weakness or incoordination.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the LBP condition 10% and the VA rated it 20%, both coded 5243 (intervertebral disc syndrome). The Board noted the CI was noted to have decreased ROM of flexion of 64 degrees with muscle spasm, but a normal gait noted at the MEB examination and at the C&P examination had decreased ROM of flexion of 60 degrees, with an otherwise normal examination except for subjective report of pain with motion. Although the flexion of 60 degrees at the C&P examination was on the cusp of the 10% and 20% ratings, the CI’s VA examination was otherwise benign. The Board agreed both the totality of the evidence in record met the 10% rating IAW the VASRD General Rating Formula for the Spine in effect at the time of the CI’s separation based upon ROM and a normal gait. The Board reviewed to see if a higher evaluation was achieved coding according to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The CI reported the loss of 30 days of work due to back pain, but the VA defines an incapacitating episode for evaluations under 5243 as “. . . requires bed rest prescribed by a physician and treatment by a physician” and there was no corroboration of incapacitating episodes as defined in the available records. There was also no evidence in the record of a peripheral nerve impairment to recommend for additional rating. 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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140106, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXX
President
DoD 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, AR20150007072 (PD201400268)


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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