RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX	CASE:  PD1300108
BRANCH OF SERVICE:  Army	BOARD DATE:  20131112
SEPARATION DATE:  20030320

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (67S/Helicopter Repairer) medically separated for a back condition.  The CI injured his back in March 2002 while bringing a floor buffer down a flight of stairs.  The 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 referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “herniated nucleus pulposus [HNP]” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as medically unacceptable.  The MEB also identified and forwarded tinnitus as medically acceptable.  The PEB adjudicated “chronic low back pain, with L4-5 herniated nucleus pulposus” as unfitting, rated 10%, using the Department of Defense Instruction (DoDI) 1332.39, and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB adjudicated the tinnitus as not unfitting. The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “My back injury was not rated properly; I had also severe depression and was never rated for that condition.  I am currently 70% service connected for problems all related to my back injury and deployments.”

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 rating for the unfitting back condition and the tinnitus is addressed below.  The depression is not within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20030110	VA - (4 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP with L4-5 Herniated Nucleus Pulposus	5293-5299-5295	10%	Herniated Disc of the Lower Back	5292-5293	10%	20021119	
Tinnitus	Not Unfitting	Tinnitus	6260	10%	20021119	
No Additional MEB/PEB Entries	Other x 3	20021119	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030221 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The CI sustained a low back injury on 19 March 2002, a year prior to separation.  A subsequent magnetic resonance imaging exam performed on 28 May 2002, 9 months prior to separation, demonstrated a small central hernia of the disc at the level L4-5 which impressed on the thecal sac.  The CI failed to improve with physical therapy as directed by orthopedics.  Neurosurgery evaluation performed on 15 August 2002 noted right leg radiating pain until June 2002 with improving symptoms, and recorded a normal neurologic examination.  The neurosurgeon found no surgical indication and thought pain was due to spasm.  The MEB examination, MEB narrative summary and VA Compensation and Pension (C&P) examination were performed on the same date by a nurse practitioner with a supervising physician on 19 November 2002.  The examiners noted tenderness to palpation of the paraspinal lumbar muscles.  Forward flexion in standing was 90 degrees, extension was 20 degrees and lateral bending 40 degrees (both sides).  Seated forward flexion was asymptomatic.  Lower extremity neurological examination described heel toe gait as normal with normal muscular strength of the lower extremities (five out of five throughout), and normal reflexes.  Gait and posture were recorded as normal in the C&P examination (which cited the same range-of-motion [ROM]).

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% (coded 5293-5299-5295) using the lumbar strain code (5295) citing characteristic pain on motion and application of DoDI 1332.39 and AR 635-40, B-39 (spine).  The VA rated the back condition 10%, coded 5292-5293 (limitation of motion and intervertebral disc syndrome), citing both ROM (5292) and incapacitating episodes (5293).  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 notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in September 2003.  The Board must correlate the above clinical data with the 2003 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome based on incapacitating episodes; and 5295 lumbosacral strain).  All Board members agreed that the ROM was nearly normal and did not well support a minimum rating under 5292 for limitation of lumbar motion.  There was evidence of characteristic pain on motion to support the 10% rating adjudicated by the PEB under 5295, lumbar strain.  There was no muscle spasm on forward bending, or loss of lateral motion to support a higher rating under the lumbar strain code.  The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome based on incapacitating episodes (code 5293, effective September 2002), used by the VA.  A higher rating of 20% under this code requires incapacitating episodes due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  Following initial recovery from surgery, there was no evidence in the service treatment records of incapacitating episodes to support a minimum rating under 5293.  There was no evidence of any unfitting peripheral nerve impairment due to radiculopathy warranting consideration for a separately unfit rating.  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 chronic low back pain (LBP) condition with L4-5 HNP, without neurologic abnormality.

Contended PEB Conditions.  Tinnitus was forwarded by the MEB as medically acceptable and determined to be not unfit by the PEB.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting tinnitus was not unfitting.  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.  The CI reported tinnitus to his physician on 15 October 2002.  During his MEB examination on 19 November 2002, audiometry demonstrated high frequency hearing loss that was slightly worse than the high frequency hearing loss documented on audiogram at the time of his military entrance examination in October 1995.  The hearing met retention standards and the profile remained H1 for no restrictions.  The hearing C&P examination performed on 24 June 2005, 2 years after separation, noted intermittent tinnitus with onset in 2002 occurring once per day lasting 5 to 10 minutes.  Audiogram testing was consistent with mild to moderate sensorineural hearing loss that was slightly worse than the examination prior to separation.  Speech recognition in noise testing was 92% for each ear.  Continued use of hearing protection in high noise settings was advised with continued annual examinations.  The tinnitus condition was not profiled (H1 profile) or implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed and considered by the Board.  There was no evidence from 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 tinnitus condition and so 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.  In the matter of the chronic LBP condition with L4-5 HNP, without neurologic abnormality condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended tinnitus condition, the Board unanimously recommends no change from the PEB determination 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	
Chronic Low Back Pain Condition with L4-5 Herniated Nucleus Pulposus, Without Neurologic Abnormality	5293-5299-5295	10%	
Tinnitus	Not Unfit	--	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130228, 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 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20140003575 (PD201300108)

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