RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxx	CASE:  PD1300860
BRANCH OF SERVICE:  Army	BOARD DATE:  20131031
SEPARATION DATE:  20050526

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (91K/Lab Technician) medically separated for chronic back pain, due to lumbar degenerative disc disease.  The CI initially began having low back pain (LBP) in April 2000.  He failed conservative management and 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 MEB forwarded the chronic back pain condition to the Physical Evaluation Board (PEB) IAW AR 40-501 for adjudication as medically unacceptable along with eight other medically acceptable conditions.  The PEB adjudicated the chronic back pain as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “My Sleep Apnea was not considered by the Army at the time of my discharge.  I also have had to undergo many rounds of nerve ablation for my lower back issues.  I have also had additional surgeries on my knees including microfracture surgery.  The deteration of my back continues to lead to a decline in lifestyle and has lead to needing handicap parking for daily pain.”

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 unfitting chronic back pain, condition and contended knee pain are addressed below.  The contended sleep apnea is not within the 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.

RATING COMPARISON:

Service IPEB – Dated 20050215	VA - 2 Mos. Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	DDD of Lumbar Spine	5242	20%	20050802	
Right Knee Pain	Medically Acceptable	Not addressed	
SAR		NSC	
R Shoulder Crepitus		S/P Arthroscopic…Decompression	5299-5201	20%	20050802	
R Wrist Ganglion Cyst		Carpal Tunnel…Right Wrist	5215	0%	20050802	
L Foot Pain		Metatarsalgia …Left Foot…	5271-5279	0%	20050802	
Right Foot Pain		S/P: …Achilles Tendon…R Foot	5271-5284	10%	20050802	
Migraine		NSC	
Depression		Major Depression	9434	10%	20050802	
No Additional MEB/PEB Entries	Other x 1	20050802	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20060123 (most proximate to date of separation [DOS]).  20070224 added OSA at 50% and increased depression to 30%, both retroactive to separation.  

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.  The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence.  The Board’s authority as defined in DoDI 6044.40; however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.  The Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected DES improprieties in the processing of his case.

Chronic Back Pain.  The CI first presented for LBP during airborne training in April 2001.  Conservative management was not adequate; a Magnetic Resonance Image (MRI) on 25 July 2001 showed a broad based disc bulge at L3-4 and a protrusion at L4-5 with foraminal encroachment and mild spinal stenosis.  His pain persisted and a repeat MRI on 11 March 2003 revealed facet disease at L3-4 and L4-5 with an annular tear of the disc at L4-5 as well.  A small protrusion was noted a L5-S1.  No canal stenosis was noted.  Electrodiagnostic testing a month later on 18 April 2003 was normal.  He underwent radiofrequency ablation (RFA) of the lumbar nerve roots with significant improvement on the left and minimal change on the right.  A primary care note on 17 September 2004 stated good forward flexion with increased pain with extension.  A 6 December 2004 plain film X-rays taken of the lumbar spine were normal.  The narrative summary dated 7 January 2005, a little over 4 months prior to separation, notes that the CI had persistent pain despite extensive conservative treatment which included chiropractic care, physical therapy, epidural steroid and facet injections, and RFA.  He required narcotics for pain management and was limited to lifting no more than 20 pounds.  Lumbar tenderness was present, but the neurological examination was normal.  Range-of-motion (ROM) measurements are charted below.  Neither atrophy nor spasm was documented.  His prognosis for improvement was thought to be poor and he was referred to the PEB for adjudication.  A pain management note dated 5 April 2005 documented that the CI received good pain relief from the RFA for about 6 months and then underwent repeat RFA with another 6 months of pain relief.  The CI reported constant LBP with radiation to the buttocks aggravated by prolonged sitting or standing, bending and twisting.  Extension was mildly decreased.  Reflexes and sensation were intact.  Repeat RFA was planned.  At the VA Compensation and Pension (C&P) examination performed on 2 August 2005, a little over 2 months after separation, the CI reported continued pain which limited him to sitting or standing for 15 minutes and walking about a mile.  He denied bowel or bladder incontinence, incapacitation and the use of an assistive device.  On examination he had mild lordosis and was tender to palpation.  Mild favoritism to the right was noted.  Spasm was noted over the lumbar paravertebral muscles.  The DeLuca criteria of fatigability, pain and lack of endurance were present..  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 20050526
Thoracolumbar ROM
(Degrees)	MEB ~ 4+ Mo. Pre-Sep	VA C&P ~ 2+ Mo. Post-Sep	
Flexion (90 Normal)	75	45 (with repetition)	
Combined (240)	215	140	
Comment	Nml neurological examination	DeLuca criteria positive; spasm with abn gait and contour	
§4.71a Rating	10%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  It noted that the C&P examination and the PEB examination were both thorough and included goniometric ROM measurements.  The September 2004 note documented good forward flexion and the April 2005 pain management note, 6 weeks prior to separation, documented only a mild decrease in extension.  The Board determined that the ROM measurements obtained at the PEB examination were more consistent with the remainder of the record and were therefore given higher probative value for rating.  There was no history of incapacitation or of spasm on the PEB examination and the ROM is consistent with a 10% disability 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 back pain condition.

Contended PEB Conditions.  The CI contended for the not unfitting knee pain and also for sleep apnea.  As discussed above, the sleep apnea was not adjudicated by either the PEB or MEB and is therefore outside the purview of the Board.  The Board’s main charge, therefore, is to assess the fairness of the PEB’s determination that the contended not unfitting knee condition 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 knee condition was profiled 7 years prior to separation after surgery, but he was then able to return to duty and qualify for airborne training.  However, he was placed on a profile for both his back and knee 4 months prior to separation and authorized to wear a brace as necessary.  The commander’s statement did not specify if the limitations were from his knee, back or both.  The knee condition was not judged to fail retention standards.  The most recent note in the medical record specific for the knee prior to separation was in April 1998, over 7 years prior to him separating.  The evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the knee condition significantly interfered with satisfactory duty performance after the CI recovered from knee surgery in 1998.  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 contended knee conditions and so 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 back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended knee conditions, 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 re-characterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Back Pain	5299-5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130613, 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 xxxxxxxxxxxxxxxxxxxxxxxxx, AR20140003490 (PD201300860)

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