RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 	CASE: PD1300199
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20140416
SEPARATION DATE:  20021209

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (12B10/Combat Engineer) medically separated for low back pain (LBP) with degenerative disc disease (DDD) diagnosed of mild nature but preventing effective duty performance by profile.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded lumbar spine DDD to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (see rating chart below) for PEB adjudication.  The Informal PEB adjudicated the LBP with DDD condition as unfitting, rated 0%.  The remaining conditions were determined to be not unfitting and not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Back problems, loss of hearing, erectile dysfunction.”

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 low back condition is addressed below.  The erectile dysfunction is also addressed below.  The requested hearing loss condition was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20021119	VA – Based on Service Treatment Records (STR)*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain w/ Degenerative Disc Disease	5295	0%	Degenerative Disc Disease, Lumbar Spine, L5-S1	5237	0%	STR	
Erectile Dysfunction	Not Unfitting	Erectile Dysfunction	7522	0%	STR	
Residual Ankle Pain S/P Ankle Sprain	Not Unfitting	Right Ankle Sprain	5271	0%	STR	
Flexion Deficit, Left 4th Distal Interphalangeal Joint	Not Unfitting	Residuals, Left 4th Distal Interphalngeal Joint	5227	0%	STR	
No Additional MEB/PEB Entries	Other x 3	STR	
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20040712 (most proximate to date of separation [DOS])
*CI failed to report for all of his scheduled C&P exams except an audiology exam. 

Unfitting Low Back Pain (LBP) Condition.  This CI started having LBP in February 2002.  Subsequently, MRI showed annular tear and small disc protrusion at L5-S1.  He was treated, but the LBP persisted and an MEB was initiated.  The MEB narrative summary was dated 1 November 2002.  At that time, the CI reported that his LBP was aggravated by bending, running, jumping and heavy lifting.  He could walk at his own pace and distance without significant problems.  Physical examination of the back revealed some tenderness near L5-S1, but no palpable spasm or visible deformity.  Straight leg raise was negative.  Range-of-motion (ROM) testing showed forward flexion of 75 degrees and extension of 25 degrees.  A detailed neurological exam revealed no evidence of radiculopathy.  The CI was separated in December 2002.  After separation, he was scheduled for a VA Compensation and Pension exam of his spine, but he failed to appear for that evaluation.

The Board carefully reviewed all available evidence and directs attention to its rating recommendation.  The VA Schedule for Rating Disabilities (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 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.  The Army PEB and the VA chose different coding options for the LBP condition, but both assigned a rating of 0%.

After a thorough review of the evidence in the service treatment record (STR) and based primarily on the November 2002 MEB exam, the Board determined that IAW VASRD §4.71a, the CI’s back condition was best described as “slight.”  The STR did not show sufficient evidence to support classifying the LBP condition as “moderate” or “severe.” The Board must adjudicate based on the degree of severity present at the time of separation.  After due deliberation, the Board determined that a separation disability rating of 10% was warranted.  The Board tried to find a path to a higher rating, 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 performance of military duties.  Therefore, no unfitting neuropathy was present at separation.  Considering all of the evidence and mindful of VASRD §4.3 (resolution of reasonable doubt), the Board unanimously recommends a disability rating of 10% for the LBP condition.  It is appropriately coded 5292 and IAW VASRD §4.71a, meets criteria for the 10% rating level.

Contended Erectile Dysfunction (ED) Condition.  While he was deployed to Kuwait, the CI was diagnosed with ED.  This condition was adjudicated by the PEB as not unfitting and therefore not ratable.  The Board’s main charge is to assess the fairness of the PEB’s determination that ED 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 ED was not profiled, implicated in the commander’s statement, or judged to fail retention standards.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the ED 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 ED condition.  Therefore, no additional disability rating is 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5292 IAW VASRD §4.71a.  In the matter of the erectile dysfunction, the Board unanimously recommends no change in 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 the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Low back pain, with degenerative disc disease	5292	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130422, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

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 XXXXXXXXXXXXXXXXXX, AR20140019648 (PD201300199)

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 10% 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						     

CF: 
(  ) DoD PDBR
(  ) DVA