RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01332
BRANCH OF SERVICE:  Army	BOARD DATE:  20141219
SEPARATION DATE:  20040820

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Aircraft Powertrain Repairman) medically separated for low back pain (LBP).  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 condition, characterized as “degenerative disk disease L4-L5 and L5-S1,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated his back condition as unfitting and rated it at 10% with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20040712	VA - (15 Days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic…Back Pain…	5243	10%	L4-5 DDD and L5-S1 HNP	5243	20%	20040805	
Other x 0 (Not In Scope)	Other x 3	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20041029 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Back Condition.  The first record in evidence for the LBP is an X-ray report for the lumbar spine in November 2001 in which the history was recorded as 4 months of LBP; the X-ray was normal.  The record falls silent until 2 years later, when the CI was evaluated in neurosurgery for a longstanding history of mild LBP with recent radiation into the right groin.  He was noted to have a normal gait and neurological examination.  On forward flexion, he could touch his toes.  No tenderness was present and provocative testing for nerve root irritation was negative.  A magnetic resonance imaging was reviewed, which showed degenerative disc disease (DDD) at L4-5 with a herniated (disc) nucleus pulposus (HNP) at L5-S1 with impingement of the connective tissue surrounding the spinal cord, but not impinging the nerve root itself.  He was treated with physical therapy (PT) and duty limitations, but no medications.  A PT note dated 18 December 2003 documented that he moved without problems.  Several primary care notes documented that he was in no acute distress, but did not comment on the back directly.  The initial narrative summary (NARSUM) was dated 3 February 2004 and noted persistent LBP with radiation into the right hip and groin.  It was aggravated by activity and benefited from some of the PT.  The neurological examination was normal as was station and gait.  Spasm was not recorded.  The range-of-motion (ROM) was reduced and recorded below.  He was recommended to enter the MEB process.  He was issued a temporary L3 profile on 18 February 2004 allowing alternate physical fitness testing.  Formal ROM measurements were obtained in PT on 10 March 2004 and are charted below.  He was noted to have motion limited by pain, but a normal gait.  A permanent L3 profile was dated 10 March 2004.  He was limited from wearing a flak vest or doing sit-ups, but no duty restrictions regarding his occupation as a helicopter mechanic were cited.  However, the commander noted 2 weeks later that the CI had not been able to perform his duties for the past 7 months.  At the MEB examination on 17 March 2004, the CI reported a history of the DDD and HNP.  The examiner documented “good ROM.”  A second NARSUM was dated 27 May 2004 and chronicled the history.  A separate examination was not accomplished.  At the VA Compensation and Pension (C&P) examination performed 15 days prior to separation the CI reported that his pain prevented him from lifting and marching.  Neither incapacitation nor spasm was recorded.  He was bent forward 8 degrees, but his gait was smooth and symmetric.  The spinal curvature was normal.  Atrophy was not present.  The ROM was reduced and is charted below.  No additional trauma was recorded which explained the limitation in motion compared to prior evaluations.  Subsequent VA C&P examinations dated 8 and 15 February 2011 and well after separation, documented that the CI was employed as an aircraft inspector and had done so for the past 6 years without any lost time from work the past 12 months.  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 ~6 Mo. Pre-Sep	PT ~5 Mo. Pre-Sep	VA C&P 15 days Pre-Sep	
Flexion (90 Normal)	60	70	45	
Combined (240)	200	---	205	
Comment		Limited by pain; nml gait	Gait smooth and symmetric	
§4.71a Rating	20%	10%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back 10% using the 5243 code (intervertebral disc syndrome).  The VA also used the 5243 code, but rated the back 20% citing the VA C&P ROM measurements.  The ROM in evidence on the VA examination and the initial MEB measurements support a 20% rating.  However, the second set of MEB measurements, as well as multiple clinical evaluations, supports a 10% rating for the ROMs in evidence.  The Board also noted that while the CI was limited in his occupation as a helicopter mechanic (as documented by the commander), he worked as an aircraft inspector after separation.  The ROM measured for flexion on the VA C&P examination is not consistent with the ability to successfully accomplish an aircraft inspection, his occupation after separation, but also supports a 20% rating.  After due deliberation, considering the totality of evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back 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 back condition, the Board, by a majority vote, recommends a disability rating of 20%, coded 5243 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 Subjective Back Pain	5243	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130909, 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, AR20150008332 (PD201301332)

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