RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01829
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Cannon Crewmember) medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3H2 profile and referred for a Medical Evaluation Board (MEB).  The “chronic back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (high frequency hearing loss and eczema) for PEB adjudication.  The Informal PEB adjudicated the low back pain condition as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  He was given a higher rating for his conditions by the VA.  His complete submission is at Exhibit A.

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 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:  

IPEB - Dated 20050518	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	20%	Degenerative Changes, Lumbar Spine	5242	20%	20051110	
High Frequency Hearing Loss	Not Unfitting	Hearing Loss, Right Ear	6100	0%	20051110	
Eczema	Not Unfitting	Eczema	7806	30%	20051110	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6 	
RATING:  20%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20060210 (most proximate to date of separation [DOS]) 
ANALYSIS SUMMARY:   

Low Back Pain (LBP).  In 1989, this CI fell and injured his back.  Then in October 2003, while deployed overseas, he suffered another injury to his back.  Magnetic resonance imaging showed degenerative disc disease at multiple levels, with a central annular tear at L5-S1.  He was treated with physical therapy, epidural steroid injections, and other conservative therapeutic modalities.  In spite of all treatment efforts, his LBP persisted and an MEB was initiated.  The MEB narrative summary was dated 14 April 2005.  The CI reported intermittent LBP on the left side, but denied any radicular symptoms.  His back pain was aggravated by bending, heavy lifting, or rising from a chair.  Physical examination (PE) in May 2005 revealed no spasm, and no tenderness to palpation (TTP).  Straight leg raise was negative bilaterally.  Gait was normal, with good heel and toe walk.  Neurological exam (motor and sensory) was normal.  Range-of-motion (ROM) was measured with a goniometer and is summarized in the chart below.

The CI was medically separated from service on 16 June 2005.  Five months later, in November 2005, he had a VA Compensation and Pension (C&P) exam.  He reported moderate left paraspinal LBP.  The pain was described as aching, burning, stabbing, and needle-like.  On PE, posture was normal but gait was antalgic.  There was moderate TTP, moderate spasm, and moderate pain with motion.  ROM was measured with a goniometer and is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 6 weeks Pre-Sep
(20050503)	VA C&P ~ 21 weeks Post-Sep
(20051110)	
Flexion (90 Normal)	60	80	
Combined (240)	185	unable to calculate	

The Board directed attention to its rating recommendation based on the above evidence.  The May 2005 MEB exam was just 6 weeks before the date of separation, and therefore had significant probative value.  At that exam, thoracolumbar forward flexion was 60 degrees.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 20% rating is warranted when forward flexion is greater than 30 degrees but not greater than 60 degrees.  The Board determined that a 20% rating was appropriate in this case, due to forward flexion greater than 30 degrees but not greater than 60 degrees.

The Board also considered the matter of radiculopathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the unfitting LBP condition.      

Other PEB Conditions.  Two conditions (hearing loss and eczema) were adjudicated by the PEB as not unfitting, and therefore not ratable.  The Board’s main charge with respect to these two conditions is to assess the appropriateness of the PEB’s fitness adjudication.  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.  These two conditions were thoroughly reviewed by the action officer and considered by the Board.  There was not sufficient evidence in the record that either of these conditions significantly interfered with satisfactory performance of military duties.  After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for these two conditions (hearing loss and eczema).  Therefore, 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 unfitting LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the hearing loss and eczema 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. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131023, 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, AR20160000071 (PD201301829)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA