RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01380
BRANCH OF SERVICE:  Army	BOARD DATE:  20141029
Separation Date:  20040220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (63B/General Motor Mechanic) medically separated for chronic low back pain (LBP).  The 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 chronic LBP condition, characterized as “chronic refractory lower lumbar back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic LBP” as unfitting, rated 10%, citing AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Because of back spasm and chronic lower back pain it’s hard to move sometimes and I take a lot of pills that make me sleepy so it hard to work and $129.00 is not enough to help these days.” 

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 LBP condition is addressed below; 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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20031215	VA - (5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5299-5237	10%	Lumbosacral Strain (claimed as degenerative disc disease L5-S1)	5237	10%	20040112	
Other x0	Other x3 	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20040420 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that his service-incurred condition has had on his current earning ability and quality of life.  It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs.  The Board utilizes VA evidence proximal to separation in arriving at its recommendations; DoDI 6040.44 defines a 12-month interval for special consideration to 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.

Chronic LBP Condition.  There were two 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 ~6.5 Mos. Pre-Sep	PT ~2.5 Mos. Pre-Sep	VA C&P ~1.5 Mo. Pre-Sep	
Flexion (90 Normal)	Decreased flexion	30	90	
Combined (240)			240	
Comment	Pos. tenderness to palpation (TTP) on left paraspinal region	Pos. painful motion; 3/5 Pos. Waddell’s; “Pt. reports that he has FROM, but he stopped AROM when the pain started”	Normal gait; Normal strength & sensation; no muscle spasm or TTP	
§4.71a Rating	10%	10%	0% (VA 10%)	

The CI injured his low back in July 2005 when he attempted to move a 500 pound stone trash receptacle and felt a “popping” sensation.  He was evaluated in the emergency room and was noted to have paraspinal TTP at the L2-4 level.  He was diagnosed with acute LBP, given a non-steroidal anti-inflammatory drug (NSAID) and a muscle relaxant along with a temporary profile for 14 days.  The primary care provider put the CI on Quarters for 24 hours for acute LBP.  The CI was referred to physical therapy (PT) and reported that his LBP no longer hurt constantly; however, he reported that he would have whole back muscle spasms daily which lasted only 45 seconds.  Lumbar spine X-rays performed in July 2002 showed a normal lumbar spine and coccyx.  The PT diagnosed mechanical LBP and the CI followed intermittently with PT throughout 2003.  The orthopedist evaluated the CI and noted persistent LBP and decreased L5 to S1 disc height.  The lumbar spine magnetic resonance imaging demonstrated L5 to S1 disc narrowing, most likely congenital without evidence of degenerative changes, disc protrusion or extrusion.  The initial commander’s statement noted that the CI was unable to perform even mildly physically demanding soldiering tasks as he had to rest every 15 minutes due to his back condition.  The CI was seen in acute care three times during 2003 for LBP (March, May and June).  The CI was given a permanent L3 Profile for LBP.  The second commander’s statement indicated that the CI continued to have an inability to perform his MOS duties due to his medical condition.  The MEB narrative summary (NARSUM) exam approximately 6.5 months prior to separation documented that the history and physical exam results were taken from the notes of three examining physicians who were no longer available.  The CI was not examined for this MEB NARSUM and the examiner was unable to contact him for an updated history.  The MEB NARSUM physical exam findings are summarized in the chart above.  PT completed a ROM exam for the MEB exam approximately 2.5 months prior to separation and the physical exam findings are summarized in the chart above.  The VA Compensation and Pension (C&P) exam approximately 1.5 months prior to separation documented the CI continued to complain of chronic LBP with occasional radiation into both feet.  He continued to require treatment with an NSAID, muscle relaxant and narcotic medications.  The VA C&P physical exam findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP condition as 5299 analogous to 5237 ( lumbosacral or cervical strain) and rated at 10%.  The VA coded the lumbosacral strain (claimed as degenerative disc disease L5-S1) condition as 5237 and rated at 10%.  All exams proximate to separation documented chronic LBP with activity.  The MEB examiner documented some TTP over the left paraspinal area.  Although the ROM’s completed by PT were limited to 30-25-28 degrees of flexion, the PT documented that “active ROM only represents CI’s willingness to move”; and furthermore the PT documented Waddell’s signs of positive axial loading, positive simulated trunk rotation, positive simulated straight leg raise and no tenderness to palpation with light touch.  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.”  Both exams proximate to separation were consistent with either a 0% or 10% rating and IAW DoDI 6040.44 the Board may not recommend a lower combined rating than that conferred by 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 chronic LBP 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.  As discussed above, PEB reliance on AR 635-40 for rating chronic LBP was operant in this case and the condition was adjudicated independently of that regulation by the Board.  In the matter of the chronic LBP 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 re-characterization of the CI's disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130910, 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 XXXXXXXXXXXXXXX, AR20150004180 (PD201301380)

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						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA