RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-00336
BRANCH OF SERVICE:  Army	BOARD DATE:  20140507
SEPARATION DATE:  20061012

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (42L/Administrative Specialist) medically separated for a back condition.  This could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty (MOS) or physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “low back pain” was forwarded to the Physical Evaluation Board (PEB) as not meeting medical standards IAW AR 40-501.  No other conditions submitted by the MEB.  The PEB adjudicated the chronic low back pain (LBP) condition as unfitting, rated 10%, with application of VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Disability from the VA is now 50%, 40% for my back under what I was discharged for.”

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 chronic back pain condition is addressed below.  Any other conditions or contention not requested in this application remain eligible for consideration by the Board for Correction of Military Records.  

RATING COMPARISON:

Service IPEB – Dated 20060614	VA - (6.1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Chronic Back Pain	5237*	NSC	20070412	
			Pain, Numbness Upper & Lower Extremities	8612-8621	NSC	20070412	
			Muscle Weakness, Upper & Lower Extremities	80233	NSC	20070412	
No Additional MEB/PEB Entries	Other x 6 (Not in Scope)	20070412	
Combined:  10%	Combined:  NSC	
Derived from VA Rating Decision (VARD) dated 20070412

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant burden imposed by her service-connected condition, must emphasize that the Disability Evaluation System has neither the role nor authority to compensate members for later severity or complications of conditions which resulted in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), which operates under a different set of laws.  The Board considers DVA evidence within 12 months only to the extent it reasonably reflects disability at the time of separation.

Chronic Low Back Pain:  The CI began complaining of LBP approximately 3 years prior to separation.  There was no acute injury and she attributed the insidious onset of her pain to her daily military duties, such as active running with wearing protective and load bearing equipment along with excessive push-ups, sit-ups and running.  The LBP was constant and migrated into both her upper and lower extremities.  The MEB narrative summary (NARSUM), prepared approximately 7 months before separation, documented the CI reported she had been on 2 years of temporary profiles.  She tried medications, physical therapy and activity modification, had undergone multiple electromyograms tests, numerous lab tests, X-rays and two magnetic resonance imagings (there were no primary documents related to these studies present for review by the Board).  Her low back condition was aggravated with prolonged standing, marching, sitting for prolonged periods and running long distances; push-ups, sit-ups, jumping and bending also aggravated her condition.  Nothing relieved her symptoms, though medications seemed to dull them.  A MEB NARSUM addendum examination was accomplished approximately 6 months before separation and range-of-motion (ROM) measurements were obtained using an inclinometer by a provider “…with recognized training in range-of-motion measurements.”  The pertinent thoracolumbar ROM measurements were active forward flexion of 45 degrees (90 degrees normal) and a combined ROM of 160 degrees (240 degree normal), with painful and pain limited motion documented on the exam.  There were no VA Compensation and Pension exams present in the evidence for review by the Board.  The Board considered documentation in the various VARDs available for review containing evidence relevant for rating recommendation purposes.  The VARD dated 12 April 2007, 6 months after separation, did not grant service-connection, specifically citing “service connection for chronic back pain is denied because the medical evidence of record fails to show that this disability has been clinically diagnosed” and there were no ROM measurements documented.  Approximately 8 years later, the next VARD granted service-connection and rated the “mechanical back pain” as 10% disabling specifically citing, “…§4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint” again, no ROM measurements were noted.  In April 2013, the rating for the CI’s mechanical back pain was increased to 40% based on documented forward flexion ROM measurement of 5 degrees with pain and the following qualification, “Although you were not cooperative with the range-of-motion procedure the examiner believes you could have performed much better with the range of motion and with strength testing.  The examiner noted from observations made your back pain was not a 10/10.  You did not grimace or frown or act at all in pain during the back exam.”  There were no flare-ups, guarding or muscle spasms noted.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic back pain by applying VARSD code 5237 (lumbosacral or cervical strain), rated 10% based on the presence of tenderness.  The VA granted service-connection for the back pain condition approximately 8 years after separation, rated 10% (based on functional loss) effective 3 months after separation.  Board members reviewed the entire case file, concluding the MEB NARSUM addendum was the only document sufficiently probative to the Board’s rating recommendation.  Though that exam used an inclinometer and VASRD 4.46 (accurate measurement) states that “the use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs,” the ROM measurements in that addendum exam are the only ones in evidence proximate to separation.  45 degrees of forward flexion is consistent with a 20% rating under the general rating formula for diseases and injuries of the spine.  The Board considered whether additional service rating could be recommended under a peripheral nerve code as granted by the VA years after separation, but there was no ratable deficit in evidence and no functional link to fitness.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic low 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 LBP, 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 the prior determination be modified as follows, effective the date of medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130506, 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 XXXXXXXXXXXXXXXXX, AR20140020818 (PD201300336)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA