RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	 CASE:  PD1301118	
BRANCH OF SERVICE:  Army 	 BOARD DATE:  20140124
SEPARATION DATE:  20051003		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active Reserve SGT/E-5 (88M/Motor Transport Operator) medically separated for a chronic back condition.  The CI injured his back during mobilization in November 2003 and had surgery.  He was found fit for duty and activated in 2004, but evacuated from theater in 2005 due to his back pain.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) 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 “L5-S1 degenerative/post op changes,” and “L4-L5 mild bilateral foraminal stenosis,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB also forwarded positive PPD (TB skin test) as meeting retention standards for PEB adjudication.  The PEB combined the two MEB back conditions and adjudicated “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 with that disability rating.

CI CONTENTION: The CI writes: “Because my back was worse than expected.”

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 is addressed below; and, no additional conditions are 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 Army Board for Correction of Military Records (BCMR).  

RATING COMPARISON:  
   
Service IPEB – Dated 20050907	VA - (8 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
CHRONIC BACK PAIN	5243	10%	LUMBAR DISC DEGENERTION	5243	40%	20060622	
POSITIVE PPD	Not Unfitting	No VA Entry				
No Additional MEB/PEB Entries	Other x 0	20060622	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20060915 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  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 (DES) has neither the role nor the authority to compensate service 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.

Back Condition.  The CI injured his back while lifting boxes during mobilization on 5 December 2003.  He received a “yes” line of duty (LOD) determination two weeks later on 20 December 2003.  A Magnetic Resonance Image (MRI) completed on 14 January 2004 was significant for right S1 nerve root impingement.  He saw a neurosurgeon the next day and surgery was recommended.  One month later on 13 February 2004 he underwent a L5 laminectomy and L5-S1 discectomy.  Two months after surgery, he was released by the neurosurgeon to full activity without restrictions.  Subsequently, a MOS Medical Retention Board (MMRB) determined he was fit for duty on 19 July 2004.  He was deployed in November 2004 and had slowly progressive, recurrent low back pain which lead to evacuation from theater in July 2005.  A second MRI on 28 July 2005 was significant for post-operative changes and loss of disc height at L5-S1 as well as mild bilateral foraminal stenosis at L4-5.  The anterior epidural space at L5-S1 was significant for the presence of soft tissue which was either fibrosis or disc material.  The CI apparently underwent an MEB that same day.  The narrative summary noted that his back pain had been stable for the past month.  Incapacitation was not documented.  He declined intervention including physical therapy, injections or a neurosurgical evaluation.  Rather, he requested separation and follow-up at the VA where he had the laminectomy.  He was doing light duty and working as a transportation driver.  The examination showed normal motor and sensory examinations, bilateral paraspinal tenderness with spasm in the lumbar region and a positive straight leg test bilaterally.  The range-of-motion (ROM) is in the table below.  At the VA Compensation and Pension (C&P) examination performed on 23 June 2006, over 8 months after separation, the CI reported continued pain since separation.  He was prescribed a TENS (transcutaneous electrical nerve stimulation) without significant benefit.  He endorsed weakness of his legs, secondary to pain, with flares.  He was using a back brace.  He reported that he was employed full time, but was limited to working two days a week due to the back problems.  He had difficulty getting in and out of the truck (he was a driver) and with some of his daily activities such as getting out of bed.  However, incapacitation was not documented.  No recent trauma was recorded to account for the deterioration between this examination and the MEB evaluation.  On examination, he was noted to weigh 261 pounds, a 30 pound increase over the past year.  Gait and stance were normal although he appeared to walk stiffly.  He had difficulty with the toe walk, but was able to heel and tandem walk.  The reflex, motor and sensory examinations were normal.  The paraspinal muscles were tender, but spasm was not recorded.  The straight leg test was positive at 15 degrees bilaterally.  An MRI showed degenerative disc disease at L5 and S1 with epidural scarring.  The diagnosis was for lumbar disc degeneration with lumbar spasm, although the latter was not documented in the examination portion of the report.  The record then falls silent until the VA C&P examination on 25 June 2008, over 30 months after separation and outside the normal 12-month window for a probative evaluation.  However, there is a disparity between the MEB and VA examinations above and the Board reviewed this examination to determine if this represented a worsening trend or not.  The CI reported that he had not worked since March 2008 due to the back pain.  He noted that his course had been progressively worse and that he had undergone facet and epidural injections.  He reported seeking bed rest for a few hours at least monthly due to the back pain.  On examination, spasm and painful motion were documented, but the gait and posture were normal.  The sensory, motor and reflex examinations were normal. There was no atrophy.  The straight leg raise was positive bilaterally at 45 degrees.  

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.

Thoracolumbar ROM
(Degrees)	MEB ~2 Mo. Pre-Sep	VA C&P ~ 8 Mo. Post-Sep	VA C&P ~ 33 Mo. Post-Sep	
Flexion (90 Normal)	85	45	70	
Combined (240)	205	120	205	
Comment	Waddell’s signs noted as negative	Flexion reduced to 15 degrees with repetition, but after six times, not the standard three	DeLuca negative	
§4.71a Rating	10%	20%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the back condition 5243 (degenerative disc disease) but at 10% and 40% disability, respectively.  The VA then deducted 10% for the pre-existing component of the back pain (in the discussion, but not on the rating table.)  The Board first considered the VA deduction for an EPTS (existed prior to service) component.  The LOD determination was made that the back condition was secondary to lifting boxes during preparations for mobilization.  The MEB determined that the condition was not EPTS.  The Board concluded that the evidence does not support a deduction for an EPTS component.  The Board then considered the rating for the back.  Both the PEB and VA used the code 5243 although no incapacitation was noted until the 2008 C&P and then only for an hour or so approximately monthly.  While spasm was noted on second VA examination and in the diagnosis part of the initial VA examination, the gait was noted to be normal (but stiff) as was the posture.  The VA rated the CI for reduced flexion at 15 degrees, but after six repetitions.  The action officer observed that this should be measured after three repetitions.  The examiner recorded that the ROM was unchanged until after six repetitions; hence, the rating should have been based on 45 degrees flexion.  The Board observed that this is a significant reduction from the MEB measurements and that there was no intervening trauma documented which could account for this.  It then reviewed the more remote VA C&P examination and observed that these ROM values were much closer to the MEB values.  The Board therefore assigned a higher probative value to the MEB examination for the purpose of rating the disability.  After review of the different available coding options for the back pain, the Board found no route to a rating higher than the 10% adjudicated by the PEB.  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 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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 Back Pain	5243	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130809, 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 XXXXXXXXXXXXXXXXXXX, AR20140005193 (PD201301118)

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