RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300224
BRANCH OF SERVICE:  Army	BOARD DATE:  20140121
Separation Date:  20040223

SUMMARY OF CASE:  Data extracted from the available evidence of record reveals this covered individual (CI) was an active duty SSG/E-6 (13B/Cannon Crewmember) medically separated for back pain.  He first experienced low back trauma in a government vehicle accident in 2002; this injury was treated conservatively with manipulation, therapy and exercise; with moderate success.  In January 2003, however, the CI woke up with severe back pain and diagnostic testing revealed disc bulges.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent L3 profile and referred for a MOS Medical Retention Board, which recommended a Medical Evaluation Board (MEB).  The back condition, characterized as “low back pain (mechanical),” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic back pain” as unfitting, rated 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was not compensated for issues that were noted at the time of my Medical chapter which have been re-evaluated by the VA and my rating from the VA has increased from 20% to 60%.  See continuation sheet.  I went to my physical at the Landstuhl medical facility and the Doctor did his, "touch your nose and your toes" examination and sent me on my way.  I received my 10% rating which I was not happy with, but pride and a viable job offer with an expiration date kept me from making a stink about it.  Fast forward to 2013, I have gotten progressively worse and experience pain at some level every minute of every day, regardless of the position I am standing, sitting or laying in… some days are significantly worse than others.  I cannot sit on my couch for longer than 20 minutes, stand in one place longer than 10 minutes or lay in my bed longer than 4 hours at a time without having unbearable lower back and hip pain.  I have not seen any doctors for this issue because I have been able to keep it somewhat under control with Ibuprofen and this now has turned into a double edged sword. I self medicate to alleviate the some of the pain and make it manageable, but in this process I have messed up my stomach something fierce and take a daily dose of Zantac and Tums to keep the heartburn under control brought on by the Ibuprofen.  I feel I should have been Medically Retired and not simply given a 10% rating for my conditions.  I have a family of 5 which I am the sole supporter and would like to know that if my condition worsens to a point to where I can no longer be the provider that my family and I will be taken care of.”

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; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The contended stomach complications due to medication were not identified by the PEB and thus are not in the 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.

RATING COMPARISON:

Service PEB – Dated 20031112	VA - (3 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Degenerative Disc Disease (DDD), Low Back	5243	10%*	20031113	
No Additional MEB/PEB Entries	Other x 4		
Combined:  10%	Combined:  20%	
Derived from original VA Rating Decision (VARD) dated 20040326.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s sentiment 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 operating under a different set of laws.  The Board considers VA 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.

Chronic Back Pain Condition.  There were two goniometric range-of-motion (ROM) evaluations in evidence (with documentation of additional ratable criteria) which the Board weighed in arriving at its rating recommendation, as summarized in the chart below:

Thoracolumbar ROM(Degrees)	MEB ~5.07 Mo. Pre-Sep	VA C&P ~ 3.43 Mo. Post-Sep	
Flexion (90 Normal)	70	50	
Extension (30)	20	15	
Combined (240)	200	155	
Comment	Pos. painful motion & paravertebral muscle spasm; motor intact; reflexes intact; normal sensory in lower extremities; Negative straight leg raise (SLR)	Normal gait; Neg. SLR; mild decrease in ROM due to increased pain with physical activity	

The CI injured his lower back when he was thrown against the side of the wall of a turret in January 2002.  In January 2003, the CI was seen for unresolved back pain with pain-limited range of movement; he was given a non-steroidal anti-inflammatory drug injection (Toradol) and placed on 24-hour quarters.  The lumbar spine X-ray performed for low back pain (LBP) (which radiated to both hips) revealed slight narrowing of the L4-5 disc space with early DDD.  The orthopedist documented constant LBP.  Physical exam findings showed tenderness along the entire lumbar spine and paraspinal area, full flexion and extension with poor effort, lumbar spine pain on simulated rotation.  Motor and sensory exams, however, were recorded as normal.  The orthopedist diagnosed chronic LBP without radiculitis.  The CI underwent several physical therapy sessions which included manipulation, ultrasound and an exercise program.  The magnetic resonance imaging exam showed L3-4 mild facet hypertrophy and L4-5 small circumstantial disc bulge with a left sided predominance.  The CI was given an L3 permanent profile for mechanical LBP and sacroiliac dysfunction with specific restrictions of no ruck sack, no heavy or repetitive lifting, no straight leg bending or twisting activities, exercise at own pace and distance, no flutter kicks and no sit-ups or push-ups.  The commander’s statement recommended the CI for retention if he could overcome the restrictive nature of his P3 profile which significantly impacted his performance of his MOS duties.  The MEB narrative summary (NARSUM) exam performed approximately 5 months prior to separation, documented that the CI was unable to wear a flak vest or backpack, unable to bear excessive weights or perform the running portion of the fitness test without undue discomfort.  The examiner opined that the prognosis was poor for the CI to be able to return to a constructive active duty military service in a field environment.  A lumbar spine X-ray performed on the same date demonstrated left rotary scoliosis and a slight exaggerated lumbar lordosis and the beginning of DDD at L4-5 and L5-S1 with early anterior-superior bone spur formation.  The VA Compensation and Pension exam completed approximately 3 months prior to separation, noted that the CI could only walk for a mile, did not go the gym and had constant low grade pain.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied the analogous code 5299-5237, lumbosacral strain, to the chronic back pain condition and rated it 10% (presumably based on the ROM findings contained in the NARSUM).  The VA coded the DDD, low back as 5243 (intervertebral disc syndrome) and rated it 10%.  Later, a remote to separation VARD increased the low back condition rating to 20% due to consideration of “Deluca criteria.”  The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  All exams proximate to separation met the ROM criteria for a minimum 10% rating.  The Board considered the findings of the lumbar spine X-ray accomplished at the time of the MEB NARSUM which documented a “left rotoscoliosis and straightening of the normal lordosis,” which meets the 20% rating criteria for muscle spasm severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  An earlier X-ray study of the lumbar spine did not document these findings.  Additionally, there were physical examination findings contained in the service treatment records that document the presence of muscle spasm proximate to separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic back pain condition.

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 chronic back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

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 Back Pain	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130424, 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 XXXXXXXXXXXXXXXXXX, AR20140006917 (PD201300224)

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