RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01616
BRANCH OF SERVICE:  Army	BOARD DATE:  20141120
SEPARATION DATE:  20041028

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M/Motor Transport Operator) medically separated for a back condition.  This condition 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 P3/L1 profile and referred for a Medical Evaluation Board (MEB).  A L5-S1 degenerative disc disease (DDD) condition, characterized as not meeting retention standards, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated chronic back pain as unfitting, rated at 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed and a Reconsideration IPEB was conducted that affirmed the PEB finding and rating.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “My condition then and now is a permanent disability since the incident occurred.  During the beginning of the PEB I was offered I0%.  I chose to appeal the decision and go before the med board to plead my case.  While going through the process of going before the board, I was given an officer to represent my case to the board. (continued) The officer went to the board with my case and came back to me to talk about the decision.  At this time the officer asked me to settle at 20%. I was not comfortable with the decision and asked the officer to fight for more please.  The officer implied the offer and told me if l fought for a higher percentage that I would be risking a chance at not getting any rating at all.”

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.  There are no additional conditions within the DoDI 6040.44 defined purview of the Board.  Any condition 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 (BCMR).

The Board acknowledges the CI’s assertions that if he fought for a higher disability rating he risked losing his PEB 20% rating.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States Judiciary System.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus 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 ratable severity at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20040831	VA* - (7.6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5242	20%	DDD, Thoracolumbar Spine	5010-5237	40%	20050613	
Other x 0 (Not in Scope)	Other x 0	
Combined:  20%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20051130 (with completed C&P exam)

ANALYSIS SUMMARY:

Chronic Back Pain Due To Degenerative Disc Disease.  The narrative summary (NARSUM) dated 18 June 2004 noted the CI was involved in a motor vehicle accident in September 2002 and developed back pain.  On 7 November 2002 X-ray images of the thoracic and lumbar spine revealed absence of evidence of a fracture or subluxation.  Bone scan study of the spine dated 22 April 2003 was normal.  On 15 October 2003 a magnetic resonance imaging of thoracic and lumbar spines demonstrated moderate DDD at L5-S1, and small disc herniation in the midline to the left making contact with the S1 nerve root, opined to be potentially of variable clinical significance.  Thoracic spine demonstrated mild DDD at several levels without herniation or stenosis, and absence of scoliosis.  The CI did report periodic bilateral paresthesia without functional implication.  He did not experience any incapacitating episodes and was not considered a surgical candidate.  Having failed conservative treatment he was placed on a permanent profile.

At the MEB NARSUM examination, the CI reported persistent back pain with an average intensity of 3/10.  Aggravating or alleviating factors were not identified; however, his profile allowed unlimited walking, bicycling, swimming, and running at his own pace and distance.  He could march up to two miles but could only lift up to 25 pounds.  The examiner noted the CI was unable to wear his body armor without significant limitations which limited his ability to be deployed.  The CI was considered to have a stable condition, “not likely to get any better with or without surgery…since his symptoms were so minimal (without loading his back with his weight on his shoulders).”  Physical examination was not recorded and the physician indicated range-of-motion (ROM) measurements would be completed by physical therapy.  The initial IPEB sent the CI’s case file back to MEB for further evaluation.  

The MEB dated 25 August 2004, recorded the CI had intermittent numbness in a non-anatomic distribution (credibility issue) and “all radiologic studies are entirely within normal limits.”  Physical examination showed mild paraspinal spasm, and back flexion to 45 degrees, and no evidence of neuromuscular or neurological compromise.  The CI was non-attendant to the initially scheduled examination; however, he was evaluated on 13 June 2005, approximately 8 months after separation.  

At the VA Compensation and Pension, the CI reported he had constant symptoms with flare-ups 4 to 5 times daily, with duration of 3 or 4 hours.  At times the back pain radiated down both legs with intermittent numbness.  The pain was described as cramping, aching, and sharp, 10/10 intensity, and no aggravating factors.  Medications somewhat alleviated the pain.  He used a TENS unit to relieve daily pain and denied episodes of incapacitation.  He was not employed, was enrolled in school, and indicated he had experienced pulmonary symptoms and weight loss.  Physical examination noted normal gait, painful motion of the thoracolumbar spine and tenderness to palpation with ROM flexion at 30 degrees and extension at 20, both limited by pain, fatigue and weakness, following repetitive use.  There was no evidence of intervertebral disc syndrome.

The Board directed attention to its rating recommendation based on the above evidence. The PEB initially rated the condition at 10% for forward flexion of 85 degrees; however, after re-examination, the rating was increased to 20% based on forward flexion of 45 degrees, coded analogously 5299-5242.  The VA rated 40%, coded analogously 5010-5237 for flexion of 30 degrees.  A higher rating of 40% requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 30 degrees.  The Board reviewed the record in evidence and noted a scarcity of ROM recordings.  The majority of the records recorded “decreased” ROM or “limited” ROM.  There were a total of three ROM available to review; the most proximal, measured approximately 2 months prior to separation, recorded flexion to 45 degrees, and most distal, more than 8 months pre-separation, recorded flexion of 85 degrees.  VA measurement nearly 8 months post-separation recorded flexion of 30 degrees.  Board members deliberated the probative value of the examinations, and concluded the 45 degree of flexion recorded by the orthopedic surgeon at the second MEB had the greatest probative value since it was the most proximal to separation.  There was no evidence of incapacitating episodes for a higher rating under 5243.  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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, 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, AR20150006350 (PD201301616)

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