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AF | PDBR | CY2014 | PD-2014-01871
Original file (PD-2014-01871.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-01871
BRANCH OF SERVICE: Army  BOARD DATE: 20141217
SEPARATION DATE: 20030605


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantry) medically separated for low back pain (LBP). The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent L3/H3 profile and referred for a Medical Evaluation Board (MEB). “Low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (bilateral sensorineural hearing loss and bilateral knee pain), both meeting retention standards for PEB adjudication. The Informal PEB adjudicated “LBP” as unfitting, rated 10%, with application 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.”


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 Veterans Affairs Schedule for Rating Disabilities (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:

Service IPEB – Dated 20030220
 VA - (2.5 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Low Back Pain 5295 10% Degenerative Disc Disease of the Lumbar Spine 5293-5292 20% 20030320
Bilateral Hearing Loss Not Unfitting Bilateral Hearing Loss 6100 0% 20030320
Bilateral Knee Pain Not Unfitting Bilateral Retro patellar Pain Syndrome 5299-5014 0% 20030320
Other x 0
 Other x 5 20030320
Rating: 10%
 Combined Rating: 30%
Derived from VA Rating Decision (VARD) dated 20030604 (most proximate to date of separation [DOS])
ANALYSIS SUMMARY:

LBP Condition: The CI injured his lower back as a result of a fall down a rock embankment approximately 20-30 feet in June 1999. He was seen for sharp LBP with radiation to the legs with physical findings of tenderness to palpation , spasm pain with forward flexion, side bending and left straight leg raise ( SLR ) . He was given an injectable non-steroidal anti-inflammatory drug ( NSAID) , a temporary p rofile and an oral NSAID. The m edical examiner noted a 2- year history of LBP and magnetic resonance imaging ( MRI ) results of degenerative disc disease at multi levels. A full spine MRI demonstrated moderate c a nal stenosis at the thoracic level and displacement of the cord and mild decreased signal o f the disc spaces in the lumbar spine. The CI was seen in p hysical t herapy (PT) for MEB range-of-motion (ROM) measurements . The MEB n arrative s ummary (NARSUM) exam approximately 6 months prior to separation documented chronic sharp LBP that was exacerbated by walking, standing , road marching and squatting. The CI had functional limitations of an inability to lift heavy objects, stand for prolonged periods of time or walk more than 1-2 miles without pain. The MEB NARSUM physical exam findings are summarized in the chart below . A lumbar spine X -ray performed that day was normal. The VA Compensation and Pension (C&P) exam approximately 2 months prior to separation documented chronic , sharp LBP with occasional radicular symptoms going down into the left leg . A flare-up occurred twice weekly with a decrease in ROM by about 50% with walking limited to 10 feet comfortably and a longer distance with pain. The CI reportedly used a cane intermittently and missed a s ignificant amount of work due to the LBP. The VA C&P physical exam findings are summarized in the chart below .

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) MEB 6.5 Mo. Pre-Sep VA C&P 2.5 Mo. Pre-Sep
Flexion (90 Normal) 40 60
Extension (30) 20 20
R Lat Flexion (30) 20 20
L Lat Flexion (30) 25 20
R Rotation (30) - 20
L Rotation (30) - 20
Combined (240) - 160
Comment ROMs from PT exam dated 2002102 5 ; Normal strength, sensation & reflexes; Equivocal straight leg raise (SLR); Pos. tenderness to palpation Pos. antalgic gait & tenderness of lumbar spine; Pos. bilateral SLR; Repetitive motion increases pain w/o decreasing ROM
§4.71a Rating 5295 10% 20%
5293-5292 20%-40% 20%
invalid font number 31502
The Board direct ed attenti on to its rating recommendation based on the above evidence . The PEB coded the LBP condition as 5295 ( Lumbosacral strain ) and rated at 10% citing “w ith characteristic pain on motion. ” The VA applied the combination code of 5293 ( i ntervertebral disc syndrome ) with 5292 ( limitation of lumbar spine motion ) and rated it at 20% for “ m oderate. ” The Board first considered whether the NARSUM or the C&P exam had the greatest probative value up on which to base its rating recommendation. The C&P exam was the more complete exam having documented ROM measurements in all planes of motion, contained detailed examiner comments and was approximately 2 months prior to separation, 4 months closer to separation than the NARSUM. After a thorough discussion, Board members agreed the VA C&P exam had the higher probative value and more aptly described the CI’s condition at the time of separation . The Board considered application of code 5293 and members agreed that the evidence does not support the diagnosis of intervertebral disc syndrome. Although the 2003 VASRD rules in effect at the time of separation d id not base their rating criteria on goniometric measurements, the C&P’s 60 degrees of flexion and reduced ranges in all other planes, indicate d a moderate limitation in motion of the lumbar spine which is consistent with the 20% rating under code 5292 as applied by the VA. Rating under code 5295 requires “ w ith muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position” for a 20% rating which was not present in this case. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations) , the Board recommends a disability rating of 20 % for the LBP condition coded 5292.

Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were b ilateral s ensorineural h earing l oss and b ilateral k nee p ain . The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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 and requires a preponderance of evidence . The b ilateral s ensorineural h earing l oss was profiled while the b ilateral k nee p ain condition w as not. The commander’s s tatement focused solely on the back condition . T here was no mention of the hearing loss or the bilateral knee condition; and, n either condition was judged to fail retention standards . The CI underwent a n MEB addendum exam for the bilateral knee condition. The examiner noted the CI reported mild swelling two times per week, popping sensation in the left knee with occasional instability. On physical exam, the examiner noted tenderness to palpation with patellar compression and patellar grind; however , there was no instability noted and ROM was normal. The examiner noted that the functional impact was “ moderate ” due to the requirement of rucking and running as part of his MOS. The examiner opined that the condition was likely to improve with decreased weight bearing activities. The examiner concluded that the CI’s bilateral anterior knee pain condition met retention criteria in accordance with AR 40-501. The VA C&P examiner documented that the CI did not require any assistive device for the bilateral knee conditions and this condition did not limit his usual occupation or daily activities. Both conditions were reviewed and considered by the Board. There was no indication from the record that either of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded there was insufficient cause to recommend a change in the PEB fitness determination for the b ilateral s ensorineural h earing l oss and b ilateral k nee condition ; therefore, no additional disability ratings can be 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 LBP condition, the Board unanimously recommends a disability rating of 20 %, coded 5292 IAW VASRD §4.71a. In the matter of the contended b ilateral s ensorineural h earing l oss and b ilateral k nee conditions, the Board unanimously recommends no change from the PEB determinations of not unfitting. There were no other conditions within the Board’s scope of review for consideration.






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

UNFITTING CONDITION VASRD CODE RATING
Low Back Pain 5292 20%
RATING 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140428, 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, AR20150009953 (PD201401871)


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              XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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