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AF | PDBR | CY2014 | PD-2014-01755
Original file (PD-2014-01755.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-01755
BRANCH OF SERVICE: Army  BOARD DATE: 20150120
SEPARATION DATE: 20091112


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Military Police) medically separated for a lumbar spine condition. The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS); however, her profile indicated she could do a modified or alternate physical therapy (PT) test. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The condition, characterized as “lumbago, L5-S1 spondylosis, DDD [degenerative disc disease] w/o myelopathy,” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB also identified and forwarded two other conditions (“asthma, mild intermittent” and “anemia”) as medically acceptable. The Informal PEB adjudicated “degenerative arthritis, lumbar spine with myofascial component” as unfitting, rated 20%, citing criteria of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “Please consider all conditions, including, but not limited to, chronic back pain which has continuously gotten worse since I got out. I have been prescribed muscle spasm and inflammation medication. I'm scheduled to start Physical Therapy in May 2014.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.








RATING COMPARISON :

IPEB – Dated 20090807
 VA (~3 Mo. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Degenerative Arthritis, Lumbar Spine 5242 20% Lumbar Strain ... 5237 10% 20100204
Asthma Not Unfitting Asthma 6602 0% 20100204
Anemia Not Unfitting Anemia 7700 0% 20100204
Other x 0 (Not In Scope)
 Other x 6 (Not In Scope)
RATING: 20#%
 RATING: 20%
Derived from VA Rating Decision (VA RD ) dated 20 100708 (most proximate to date of separation [ DOS ] ) .


ANALYSIS SUMMARY:

Lumbar Spine Condition. The earliest entries in the service treatment record (STR) with regard to this condition are from October 2007, and document an onset of radiating low back without recall of any precipitant. Magnetic resonance imaging in December 2007 noted “mild” disc bulging (L4/5, L5/S1) without nerve root compromise; and, a clinical entry from the same period documents that left leg radicular pain had resolved. There are multiple STR entries documenting 5/5 muscle strength and normal neurological findings. Surgical intervention was not indicated, and a protracted period of PT and attempted rehabilitation was beneficial but not adequately so. Various STR entries document slightly decreased to full range-of-motion (ROM), but with painful motion; and, multiple entries document normal gait and spinal contour. No STR entries document gait disturbance, significant ROM limitations, neurological deficits, or periods of incapacitation. The narrative summary (NARSUM) was conducted on 30 June 2009 (4 months prior to separation), and related an onset of back pain with being jostled in a gun turret in October 2007. The examiner documented “continues with chronic lumbar pain with spasm and discomfort, limiting her ability to perform her full range of MOS and military duties.” The NARSUM physical exam noted a normal gait, tenderness, spasm, guarding, and normal neurological findings. Goniometric ROM measurements from PT were recorded as flexion to 50 degrees (normal 90 degrees) and combined ROM of 170 degrees (normal 240 degrees).

The VA Compensation and Pension (C&P) examination was conducted on 4 February 2010 (3 months after separation); and, documented constant and “moderate” pain in the “lower back to hip area ... exacerbated by physical activity and stress.” The examiner documented the absence of any weakness or incapacitating episodes, and noted that “she can function without medication.” The VA physical exam noted a normal gait, normal spinal contour, and tenderness, the absence of spasm, and normal strength and neurological findings. Measured ROM was normal in all planes with pain on repetitive motion.

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 20% rating under code 5242 (degenerative arthritis of the spine) is compliant with VASRD §4.71a criteria for the MEB flexion of 50 degrees. The VA’s 10% rating under code 5237 (lumbosacral strain) was premised on the §4.71a criterion of spinal tenderness. The evidence does not support any §4.71a criteria for a rating higher than the 20% conferred by the PEB. There was no evidence of ratable peripheral nerve impairment which would provide for additional rating, or documentation of incapacitating episodes which would provide for a higher rating under that formula. 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 of the lumbar spine condition.

Contended Asthma and Anemia Conditions. The CI was diagnosed with asthma in basic training, and the condition remained stable without interfering with physical training or MOS requirements throughout the balance of service. The NARSUM documented “some symptoms about once a month” with intermittent use of a rescue inhaler. She carried a P2 profile for the condition (not requiring MEB or generally considered unfitting). The post-separation C&P exam documented the same frequency of symptoms and acuity as the NARSUM; further stating, “The claimant reports that she does not experience any overall functional impairment from this condition.” The CI was diagnosed with mild iron deficiency anemia in 2006 which remained stable with iron supplement (hemoglobin 10.2 [normal 12-16] and hematocrit 30.4 [normal 36-47] at separation). The NARSUM related no symptoms attributable to the condition. The C&P examiner noted fatigability; but, made the same statement with regard to the absence of overall functional impairment as quoted above for the asthma condition. The anemia condition was not profiled. The MEB examiner specified that both of these conditions met retention standards. The commander’s performance statement discussed only the lumbar condition and limitations, without mention of the asthma or anemia conditions.

The Board’s main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they were 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. The conditions were reviewed by the Board members; and, it was agreed that there was no performance based evidence suggesting that either of them significantly interfered with duty performance. 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 adjudication for the asthma or anemia conditions; thus neither can 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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the asthma and anemia conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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 20140422 w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record






XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150010454 (PD201401755)


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

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