RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1300035
BRANCH OF SERVICE:  Army	BOARD DATE:  20130528
SEPARATION DATE:  20030711

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92A/Logistics) medically separated for low back pain (LBP) with degenerative disc disease (DDD).  The CI presented in 1993 with a complaint of LBP after lifting something heavy.  He had a waxing and waning course of LBP over the next several years.  In June 2002, radiographic imaging showed DDD at multiple lumbar levels.  His condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile, and underwent a Medical Evaluation Board (MEB).  The MEB found his lumbar DDD medically unacceptable, and referred him to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded two other conditions (see rating chart below) as medically acceptable.  The PEB found the low back condition unfitting, and rated it 10% IAW Department of Defense Instruction (DoDI) 1332.39.  The other two conditions were determined to be not unfitting, not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “At the time of my medical evaluation board, I feel the Army had not done all possible screening to evaluate my lower back injury properly.  Had the Army done all the correct testing before my medical evaluation board I feel I would have been granted a higher disability rating.  Since my separation my lower back injury condition has continued to hinder me on my work performance, causing me to be overlooked for certain positions because of my disability.  My back pain has gotten much worse to the point that l am limited in my physical activities with my children.  I hurt when I walk, sit, and stand.  My sleep is greatly affected as there is not a single night that I wake numerous times from pain in my back and therefore I am exhausted throughout the day.  It is because of these significant health changes and medical findings that I am requesting an evaluation for the consideration of medical retirement.  Also on my MEB I had an acromioclavicular joint separation, grade III which was found unacceptable but it was not evaluated on my PEB.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the low back condition and right shoulder condition are addressed below.  No other conditions are within the Board’s defined purview.  Any conditions or contention not requested in his application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:
   
Army PEB – dated 20030514	VA – (Exam ~ 1 mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Condition	5299-5295	10%	Lumbar Spine Condition	5243	0%*	20030616	
Right Shoulder Condition	Not Unfitting	Right Shoulder Condition	5203	10%	20030616	
Headaches	Not Unfitting	Headache	8199-8100	NSC	20030616	
No Additional MEB/PEB Entries			
Combined:  10%	Combined:  30%	
   * VA rating for the Lumbar Condition was raised to 10% (effective 20030926), when new VA spine rules were implemented

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertion that certain improprieties may have occurred while the Army was processing his case.  It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in regard to suspected improprieties.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB fitness and rating determinations, based on severity at the time of separation.  The Board also acknowledges the sentiment expressed by the CI regarding the impairment with which his back condition continues to burden him, and the significant impact it has had on his quality of life.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions.  That role and authority is granted to the Department of Veterans Affairs (DVA).  The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation.  The DVA, however, is empowered to compensate for service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the CI’s disability rating should the degree of impairment change over time.

Low back pain (LBP).  The CI presented in 1993, complaining of LBP.  Imaging in June 2002 showed DDD in the lumbar spine.  He reinjured his back in November 2002.  The CI was seen by orthopedics.  It was determined that he was not a surgical candidate.  He was treated with conservative measures, including physical therapy.  In spite of treatment, his LBP persisted and an MEB was initiated.  The MEB physical examination (PE) was in April 2003.  There was slight tenderness to palpation (TTP) of the lumbar spine.  Heel-to-toe was normal, and neurological exam was normal.  Lumbar range-of-motion (ROM) was not recorded.  On 16 June 2003, the CI had a VA Compensation and Pension exam, 3 weeks prior to separation from service.  He reported that his LBP was occurring almost daily.  The pain would radiate to the level of his feet bilaterally, along the back of his legs, about weekly.  On PE, gait and posture were normal.  There was TTP of the lumbar spine.  Heel-and-toe gait was normal.  His back ROM was full.  Reflexes and muscle strength were normal.

The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence.  The Army PEB and the VA chose different coding options for the LBP condition.  The VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were changed in September 2003.  The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment.  IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation from service.

Based on a thorough review of the evidence in the service treatment record (STR), the Board determined that IAW VASRD §4.71a, the CI’s LBP condition was best described as “slight.”  There was insufficient evidence to support classifying the condition as “moderate” or “severe.” After due deliberation, the Board determined that a separation disability rating of 10% was warranted due to his pain on motion.  The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the STR did not show sufficient evidence of a disabling lumbar spine abnormality which would justify a rating higher than 10%.  The Board also considered the matter of neuropathy.  After reviewing all the information in the STR, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties.  Therefore, no unfitting radiculopathy was present at separation from service.  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 for the LBP condition.

Right shoulder condition.  The CI had a history of right acromioclavicular separation and right shoulder surgery.  The Army PEB adjudicated the right shoulder condition as not unfitting.  

The Board’s main charge is to assess the fairness of the PEB’s determination that the right shoulder condition was not unfitting.  The threshold for countering a fitness determination 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 right shoulder condition was reviewed by the action officer and considered by the Board.  There was insufficient evidence in the record that this condition significantly interfered with satisfactory 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 fitness determination for the right shoulder condition.  Therefore, no additional disability ratings are 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.  As noted above, PEB reliance on DoDI 1332.39 was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the LBP condition, the Board unanimously recommends no change in the PEB adjudication, IAW §4.71a of the VASRD that was in effect at the time of separation.  In the matter of the right shoulder condition, the Board unanimously recommends no change in the PEB adjudication 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 recharacterization of the CI’s disability and separation determination, as follows: 

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain, with Degenerative Disc Disease	5299-5295	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130113, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130014778 (PD201300035)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA