RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01831
BRANCH OF SERVICE:  Army	BOARD DATE:  20140620
SEPARATION DATE:  20040605

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (55B/Ammunition Specialist) medically separated for chronic low back pain (LBP), without neurologic abnormality.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The LBP condition, characterized as “medically unacceptable” 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 low back pain, without neurologic abnormality” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals at that time and was medically separated.

CI CONTENTION:  “At the time of my discharge I was being treated for all the symptoms of Lupus.  3 months after I was discharged I was diagnosed as having Lupus.”  

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 low back pain condition is addressed below.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20031208	VA - (6 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbar Strain	5237	10%	20041228	
No Other Item in Scope	Other x 1 (Not in Scope)		
Combined:  10%	Combined:  10%	
    Derived from VA Rating Decision (VARD) dated 20050816 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the contention expressed by the CI, that lupus was diagnosed after separation.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for conditions that are diagnosed after separation from service.  The Board’s authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While other symptoms or conditions may have been present, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation.

Low Back Pain.  The CI injured her back while lifting heavy boxes.  Computerized tomography (CT) of the lumbar spine showed a small disc bulge at L4-L5, with no significant central canal or neural foraminal narrowing.  She was treated with multiple treatment modalities including physical therapy, medications, chiropractic care and trigger point injections.  However, her LBP persisted and an MEB was initiated.  The MEB narrative summary was dated 21 October 2003.  At that time, the CI reported constant LBP, which was “aching-type” in character.  The symptoms got worse with prolonged standing/sitting/walking, running, sit-ups, lifting or bending.  She denied radicular symptoms and gait was normal.  On physical examination (PE) of the back, there was some tenderness to palpation bilaterally.  She was able to walk on tip-toes and heels.  Straight leg raise was negative.  Neurological exam was normal.  Range-of-motion (ROM) was assessed and is summarized in the chart below.

The CI was medically separated from service on 5 June 2004.  Six and a half months later, she had a VA Compensation and Pension exam.  She was fully ambulatory without assistance and in no distress.  Posture and gait were normal.  PE of the back revealed normal curvature and symmetry of the spine.  Thoracolumbar ROM was normal.  There was some right-sided muscle spasm when she flexed forward to about 90 degrees.  Repeated and resisted motion did not further limit ROM or function.  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 7½ mos. Pre-Sep
(20031021)	VA C&P ~ 6½ mos. Post-Sep
(20041228)	
Flexion (90 Normal)	70	90	
Extension (30)	20	Normal	
R Lat Flexion (30)	30	Normal	
L Lat Flexion (30)	30	Normal	
R Rotation (30)	15	Normal	
L Rotation (30)	15	Normal	
Combined (240)	180	(n/a)	
Comment	Some tenderness	Some muscle spasm/pain	
§4.71a Rating	10%	10%*	
*10% based on VASRD §4.40 (Functional loss), §4.45 (The joints), and §4.59 (Painful motion)

The Board directs attention to its rating recommendation based on the above evidence.  The Army PEB and the VA chose similar coding options for the LBP condition and both assigned a disability rating of 10%.  At the October 2003 MEB exam, forward flexion was 70 degrees, and combined thoracolumbar ROM was 180 degrees.  IAW VASRD §4.71a, a 10% rating is warranted when thoracolumbar forward flexion is greater than 60 degrees, but not greater than 85 degrees.  Also, a 10% rating is warranted when combined thoracolumbar ROM is greater than 120 degrees but not greater than 235 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 10% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 10%.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy 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 for the LBP condition.

Other Contended Condition.  As noted above, the CI contends that lupus was diagnosed after separation from service.  This condition was not within the scope of the Board.

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 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 20131009, 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, AR20150001032 (PD201301831)

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