RECORD OF PROCEEDINGS 
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX			         BRANCH OF SERVICE: ARMY 
CASE NUMBER:  PD0900197			         BOARD DATE: 20101007
SEPARATION DATE: 20070104
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SUMMARY OF CASE:  This covered individual (CI) was an active duty SPC (MOS 92W, Water Treatment Specialist) medically separated from the Army in 2007 after 5 years of service.  The medical basis for the separation was a back condition.  He had a four year history of constant back pain after injuring his back while lifting and carrying.  This was managed with physical therapy (PT), medications and conservative measures.  He was not a surgical candidate for his back condition, and did not respond adequately to the conservative treatment to perform within his MOS (occupational specialty) or participate in the Army Physical Fitness Test (APFT).  He was issued a permanent L-3 profile, assigned to the Medical Processing Company, and underwent a Medical Evaluation Board (MEB).  He was concurrently treated for a right shoulder condition and anxiety disorder, neither of which required a duty limiting profile.  The back condition was forwarded for Physical Evaluation Board (PEB) adjudication as medically unacceptable IAW AR 40-501 retention standards.  The right shoulder and psychiatric conditions were forwarded on the DA Form 3947 as medically acceptable IAW AR 40-501.  Additional conditions supported in the Disability Evaluation System (DES) file are discussed below, but were not forwarded for PEB adjudication on the DA Form 3947.  An informal PEB adjudicated the back condition as unfitting.  The CI did not appeal the PEB findings and was thus medically separated with a disability rating of 10%. 
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CI CONTENTION:  The CI elaborates at length regarding the current degree of impairment he suffers from his back condition, emphasizing a subsequent VA diagnosis of “bulging disc” ; the disability he suffers from other conditions; and, disregard of his injuries by his Command.  He states, “…all this makes me more than eligible for retirement with the Army”.  In addition to his back condition, he implies that disability ratings are warranted for his right shoulder condition, right wrist pain, hearing loss and his anxiety disorder.  As a matter of policy, all service conditions are reviewed by the Board for their potential contribution to its rating recommendations. 
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RATING COMPARISON:

Service PEB – Dated 20061109	VA (2 Mo. after Separation) – All Effective 20070105	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Low Back Pain	5299-5237	10%	Degenerative Disc Disease…	5242	10%	20070313	
Right Shoulder Biceps Tendonitis	Not Unfitting	Right Biceps Tendonitis	5099-5024	10%	20070313	
Adjustment Disorder /  Anxiety	Not Unfitting	Adjustment Disorder /  Anxiety	9440	30%	20070313	
No Additional DA Form 3947 Entries.	Non-PEB X4/NSC  X1	20070313	
TOTAL:  10%	TOTAL Combined: 40%                                                                          	
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ANALYSIS SUMMARY:

The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that his service connected conditions have had on his current earning ability and quality of life.  It is a fact, however, that the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation or incurred on active duty.  This role and authority is granted by Congress to the Veterans Administration.  The Board further acknowledges the CI’s statements in the application that his service conditions were further aggravated by inappropriate physical demands placed on injured soldiers by his Command, and that the Army failed to diagnose a bulging disc.  In that regard, the Board notes for the record that it has neither the jurisdiction nor authority to investigate or render opinions in reference to alleged Service improprieties.  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 Veterans Administration Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.  It must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation.

Back Condition.  The CI’s back condition had been chronic and constant since an injury in 2003, but he successfully managed his MOS and APFT requirements and was carried on an L-2 profile.  X-ray examination showed mild degenerative changes.  By August 2006 his impairment had progressed to the point that it necessitated a permanent L-3 profile and consequent referral for a MEB.  There were two goniometric range-of-motion (ROM) examinations in evidence on which the Board may base its VASRD §4.71a rating recommendation:  the MEB evaluation and the VA rating examination.  Both specified pain as the end-point of measurement.  The MEB examination noted localized paraspinous tenderness, but normal gait and spinal contour.  The VA examiner stated the gait was antalgic, although conversely stated that the curvature was normal and that there was no spasm.  The exams are summarized in the chart below.

Thoracolumbar ROM	MEB – 10/24/06	VA C&P – 3/24/07	
Flexion	55⁰	60⁰	
Combined	180⁰	150⁰	
§4.71a Rating	20%	20%	

The PEB and VA chose different coding options for the condition.  The PEB’s DA Form 199 reflected application of the US Army Physical Disability Agency (USAPDA) pain policy for rating.  The VA rating decision assigned a 10% rating quoting a flexion of 75⁰, which was the gross measurement entered on the examination.  That measurement, however, was clearly qualified by the examiner’s statement that “pain begins at 60 degrees”.  Also overlooked was the examiner’s entry regarding antalgic gait, itself a criteria for a 20% rating IAW §4.71a.  It is judged therefore that the VA rating was inaccurately assigned.  Both exams are similar in findings and in proximity to separation (the MEB exam 10 weeks prior and the VA exam 10 weeks after separation).  Both exams merit a §4.71a rating of 20% rating based on flexion ≤ 60°, and 20% is the logical rating recommendation from the Board.  The VASRD code 5242 (arthritis of the spine) is preferred for its simplicity and accurate characterization of the pathology in this case.

Other DA Form 3947 Conditions (Right Shoulder Condition, Adjustment Disorder/Anxiety).  The CI specifically contends in his application that symptoms of his right shoulder condition and adjustment/anxiety disorder were ignored by the DES, and is noted that the VA subsequently rated both conditions.   The conditions were, however, well covered in the MEB’s narrative summary to the PEB.  The CI injured his shoulder in a motor vehicle accident in October 2005.  His symptoms were mild and intermittent, exacerbated by overhead work.  An MRI (magnetic resonance imaging) and arthrogram were both normal.  The condition was judged to be medically acceptable IAW AR 40-501.  The shoulder condition was not implicated in Commander’s statement and the profile was U-1.  The CI’s psychiatric condition was treated with anti-anxiety medications.  His psychiatrist opined that “It does not appear that [CI’s] psychiatric symptoms are interfering with his ability to function in the military setting.  Therefore, he continues to meet retention criteria standards IAW AR 40-501 and a formal psychiatric addendum is not required for his Medical Evaluation Board.”  There was no indication of mental health impairment in the Commander’s statement or enlisted evaluations; the profile was S-1.  All evidence considered there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudications for the right shoulder or adjustment/anxiety disorder conditions.

Other Conditions.  In addition to the conditions covered above, the CI noted several additional conditions or complaints on the MEB physical.  These included hearing loss, dry skin, knee trouble, heartburn, and a benign cyst on the wrist.  None of these conditions were severe or under active treatment at the time of separation.  The hearing loss was profiled H-2.  None of the other conditions were profiled, and none of them can be linked to fitness.  The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.
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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 the USAPDA pain policy for rating the back condition was operant in this case.  The condition was adjudicated independently of that policy by the Board.  In the matter of the back condition, the Board unanimously recommends a rating of 20% coded 5242 IAW VASRD §4.71a.  
In the matter of the right shoulder and adjustment/anxiety disorder conditions, the Board unanimously recommends no recharacterization of the PEB adjudications as not unfitting.  In the matter of the hearing loss, right wrist condition, skin condition, knee condition(s), heartburn or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.
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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	
Degenerative Arthritis of the Spine	5242	20%	
COMBINED	20%	
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The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20090222, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.