RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:   XXXXXXXXXXXXXX		                    BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100134 		                           SEPARATION DATE:  20070426
BOARD DATE:  20120228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (94E, Communication Security Radio Repair Operator), medically separated for chronic low back pain (LBP).  The CI developed LBP while deployed to Afghanistan from January 2004 through April 2004.  He was treated with anti-inflammatories, physical therapy and temporary profiles.  The CI’s symptoms improved with treatment and he was able to deploy to Afghanistan for a second time from October 2004 through January 2005.  During the second deployment, the CI’s LBP recurred, exacerbated by parachuting, carrying a ruck sack and wear of a flack vest.  The CI did not respond adequately to treatment and was unable to perform within his Military Occupational Specialty (MOS) or meet physical fitness standards.  He was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB).  Chronic low back pain (with degenerative disc disease) was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  No other conditions appeared on the MEB’s submission.  Other conditions included in the Disability Evaluation System (DES) packet will be discussed below.  The PEB adjudicated the chronic low back pain (secondary to degenerative disc disease) condition as unfitting, rated 10%; with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated with a 10% disability rating.  

CI CONTENTION:  The CI states:  “Refer to VA medical records.”  He elaborates no specific contentions regarding rating or coding and mentions no additionally contended conditions.

RATING COMPARISON:  

Service IPEB – Dated 20070118	VA (1 Mo. After Separation) – All Effective Date 20070427	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	… Herniated Disc, Lumbar Spine	5242	10%*	20070510	
↓No Additional MEB/PEB Entries↓	Adjustment D/O …	9440	30%	20070714	
	DJD, Right Knee	5003-5260	10%	20070510	
	B Plantar Fasciitis …	5299-5276	10%	20070510	
	Morton’s Neuroma … L Foot	5279	10%	20070510	
	Bilateral Tinnitus	6260	10%	20070714	
	0% x 2*/Not Service Connected x 1	20070714	
Combined:  10%	Combined:  60%*	
* Increased lumbar spine, 5242, to 20%; and cervical spine, 5242, to 10% effective 20090602 (combined 70%).  Added ulcerative colitis,7399-7323, at 30% effective 20091020 (combined 80%)

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him (as evidenced by comparison to higher and later Department of Veterans’ Affairs (DVA) ratings).  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the DES operates.  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.  That role and authority is granted by Congress to the DVA, operating under a different set of laws (Title 38, United States Code).  The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.  The Board also acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected by the DVA).  While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  The DVA, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Chronic Low Back Pain Secondary to Degenerative Disc Disease.  There were two goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation.  These were the MEB narrative summary and the VA Compensation and Pension (C&P) examination.  The exam findings are summarized in the chart that follows.

Goniometric ROM - Thoracolumbar	MEB ~ 4 Mo. Pre-Sep
(20061211)	VA C&P ~ 2 Wks. After-Sep
(20070510)	
Flex (0-90)	0-45⁰	0-90⁰	
Ext (0-30)	0-17⁰ (15⁰)	0-30⁰	
R Lat Flex (0-30)	0-15⁰	0-30⁰	
L Lat Flex 0-30)	0-10⁰	0-30⁰	
R Rotation (0-30)	0-20⁰	0-30⁰	
L Rotation (0-30)	0-15⁰	0-30⁰	
COMBINED (240)	120⁰	240⁰	
Comment	Painful ROM; bilateral spasms in lower back; positive straight leg raise on L; 5-/5 L hip flexion, knee flexion and extension “mainly due to pain”; normal gait	Painful motion; normal gait; normal motor and sensory; no incapacitating episodes; no spasm or guarding; no additional loss of motion on repetitive use; positive Laseague’s on L	
§4.71a Rating	20% (PEB – 10%)	10%*	
		*With application of §4.59, Painful Motion

The MEB exam noted painful limitation of lumbar spine ROM, with active flexion limited to 45 degrees and a combined ROM of 120 degrees.  The examiner stated that passive flexion of the lumbar spine was limited to 70 degrees, with pain elicited at 45 degrees.  The exam additionally documented bilateral lumbar spasm, a positive straight leg test on the left and decreased strength (5-/5) in the left lower extremity.  The decreased strength was postulated as due to pain.  At the VA C&P exam, the CI complained of weekly flare-ups but denied any incapacitating episodes.  The exam documented normal lumbar spine ROM with painful motion.  There was no spasm, guarding, or abnormal spinal contour; there were no motor or sensory deficits.  Laseague’s sign was positive on the left.  The examiner noted no additional loss of motion with repetitive use of the joint.  Both exams documented a normal gait.  A lumbar spine MRI          (31 May 2006) documented disc dessication at L5-S1 associated with a broad bulge, a possible annular tear and mild left neural foraminal narrowing.

The MEB examiner noted that the CI was unable to maintain awkward positions and unable to perform three to five second rushes, dig a fighting position or run with a fighting load.  The profile allowed for the performance of a two mile run, but stated no airborne operations, no sit-ups, no wear of flack vest, no lifting greater than 20 pounds, and no use of flack vest, ruck sack or Kevlar.  The commander’s statement commented that the CI’s chronic back pain had prevented him from taking the PT test, deploying and performing his assigned duties.  Specifically, the commander noted that the CI was unable to load and unload, move, and install communication equipment on board military aircrafts.  Additionally, the CI’s condition made him unable to maintain and monitor equipment mounted in small compartments.  The commander concluded, “because of his physical limitations, he can only provide minimal support to his team in accomplishment of their mission.”  

The PEB and the VA utilized similar coding and arrived at the same rating for the condition.  The 5242 coding rates based upon the general rating formula for diseases and injuries of the spine.  There were no documented incapacitating episodes to justify rating based upon that criteria.  The degree of limitation of lumbar spine flexion documented at the MEB exam meets the criteria for 20% ratings, “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; … or the combined range of motion of the thoracolumbar spine not greater than 120 degrees.”  The PEB commented that ROM is limited by pain and their rating of 10% likely reflects application of the USAPDA pain policy.  The VA rating of 10% reflected the finding of normal range of motion with painful motion documented at the C&P exam.  

The Board considered the probative value of the disparate back exams.  Both exams were detailed and comprehensive; however, the VA exam was more proximate to separation.  The Board considered that the differences in exam findings reflected episodic improvements and exacerbations in the CI’s clinical course.  The limitation of lumbar spine ROM documented at the service exam was associated with bilateral spasms and likely reflected a period of symptom exacerbation.  Episodic back pain exacerbations with associated limitation of ROM, were well documented in the STR.  Likewise, the C&P examiner documented the occurrence of weekly, flare-ups of severe back pain.  Per the VASRD §4.7, “Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.”  The Board adjudged that the CI’s well documented functional limitations and duty restrictions were most consistent with the ROM limitations documented at the service exam.  

There was insufficient evidence of an unfitting peripheral neuropathy.  Both exams documented positive straight-leg raise testing on the left and the service exam also documented a slight decrement in left lower extremity strength; this decrement in strength was attributed to pain as opposed to actual weakness.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was no documentation of physical impairment attributed to the slight loss of motor strength noted at the service exam.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The motor impairment was relatively minor and cannot be linked to significant physical impairment.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 separation rating of 20% for the chronic low back pain condition.  

Remaining Conditions.  Other conditions identified in the DES file and the VARD within 12 months of separation were adjustment disorder with depressed mood, degenerative joint disease of the right knee, bilateral plantar fasciitis and left calcaneal spur, morton’s neuroma of the left foot and bilateral tinnitus.  Several additional non-acute conditions or medical complaints were also documented in the MEB history and physical.  None of these conditions were significantly clinically or occupationally active during the MEB period, none carried attached profiles, and none were implicated in the commander’s statement.  The commander’s statement and profile noted only the back condition as interfering with duty performance.  Adjustment disorder is a condition which does not constitute a physical disability IAW DoDI 1332.38, Encl 5.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the chronic low back pain condition was operant in this case and the condition was adjudicated independently of that policy regulation by the Board.  In the matter of the chronic low back pain condition the Board unanimously recommends a permanent service disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the adjustment disorder with depressed mood, degenerative joint disease of the right knee, bilateral plantar fasciitis and left calcaneal spur, Morton’s neuroma and bilateral tinnitus conditions 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.

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	
Chronic low back pain	5299-5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110323, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 

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