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AF | PDBR | CY2014 | PD-2014-02105
Original file (PD-2014-02105.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-02105
BRANCH OF SERVICE: Army  BOARD DATE: 20141218
SEPARATION DATE: 20020326


SUMMARY OF CASE: The evidence of record indicates this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for low back pain (LBP). This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “chronic back pain” and “small focal disk herniation, L5-S1,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501; no other conditions were submitted by the MEB. The PEB adjudicated “chronic low back pain…with…disc herniation…” as unfitting, rated 10%, referencing the Department of Defense Instruction (DoDI) 1332.39 and Army Regulation (AR) 635-40, appendix B-39. The CI made no appeals and was medically separated.


CI CONTENTION: “Please review 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 20011226
 VA - based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain… 5293 10% Low Back Condition 5293 0% STR
Other x 0 (Not in Scope)
 Other x 0
Combined: 10%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 200 30422; CI did not report for scheduled C&P exams .





ANALYSIS SUMMARY:

Low Back Condition. The 1997 Report of Medical Examination recorded a diagnosis of mild asymptomatic scoliosis. Treatment entry dated 31 July 2000 noted the back pain had been present for 8 years. He was able to tolerate the pain and continue his duties; his pain was described as intermittent and occasional. A September 2000 primary care entry recorded full range-of-motion (ROM) of the spine with normal reflexes and sensations and negative straight leg raises. Approximately a year prior to separation, clinic records recorded the single report of LBP. There was no objective finding of spasms or report of pain radiation to lower extremities on examinations. The CI underwent consultations with orthopedic surgery (who determined his back pain was mechanical) and physical therapy. Magnetic resonance imaging in March 2001 demonstrated mild, small disc herniation at L5-S1 without evidence of neurological involvement. He was not deemed a surgical candidate.

The MEB narrative summary evaluation on 14 November 2001, 4 months prior to separation, noted the CI had participated in a course of physical therapy but had not improved after 6 weeks. He was placed on temporary profiles and improved; however, once he returned to full duty his back pain worsened. By March 2001, the pain began to bother him during sleep. He could not perform the duties of his MOS secondary to the inability to run greater than 2 miles or ruck greater than 3 miles. He could not lift greater than 75 pounds. His pain was described as tight, and throbbing, and with certain activities it reached 8/10 in intensity. The physician noted the CI stated although he had pain, he felt that he could do many other non-physical jobs within the military. The physician noted the CI had recently passed his PT test without difficulty. Physical examination of the spine recorded tenderness to palpation along the paraspinous muscles, no spasm, and ROM flexion was recorded as full with pain. Gait was normal and motor, sensory and reflex sensory examinations were unremarkable. The CI expressed a desire to remain in the military with appropriate pain management. The CI did not attend to the scheduled VA Compensation and Pension evaluation.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% for pain on motion code 5293 (intervertebral disc syndrome). The PEB noted the presence of small focal disc herniation without neurological abnormality or documented spasm, and the presence of painful motion. The VA used the service treatment records to assign a non-compensable rating of 0% and noted the CI failed to attend the VA examination. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board must correlate the above clinical data with the 2002 rating schedule which was in effect at the time of separation (applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293, (Intervertebral disc syndrome), and 5295 (Lumbosacral strain). The Board considered the rating under 5295; however, there is insufficient evidence to support the higher rating of 20% since there is no evidence of spasms occurring on extreme forward bending and no documented clinical evidence of spasms in any record prior to separation. The Board considered the 5292 limitation of motion code and noted there were no entries in the treatment records to support a rating under this code since all of the recorded ROM were described as full. A rating higher than 10% under the 5293 code would require evidence of ratable peripheral nerve impairment, muscle spasms and recurrent attacks, not supported by the evidence. 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 determination 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. As discussed above, PEB reliance on DoDI 1332.39 and Army Regulation (AR) 635-40, appendix B-39 for rating the chronic low back pain condition was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board. In the matter of the chronic low back pain 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 no re-characterization of the disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140508, 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, AR20150010557 (PD201402105)


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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