RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01886
BRANCH OF SERVICE:  Army	BOARD DATE:  20141016
SEPARATION DATE:  20050207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (25S/Satellite Communicator) medically separated for chronic subjective low back pain (LBP).  The 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 L3 profile and referred for a Medical Evaluation Board (MEB). The chronic LBP, characterized as “chronic uncomplicated low back pain (slight/intermittent),” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic subjective 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 and was medically separated.

CI CONTENTION:  “PFPS in both legs occurred during service and would have made me 30% if included in MEB. VA rated me 30% just under (4) months after discharge.”

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 subjective low back condition is addressed below; no additional conditions (the contended patellofemoral pain syndrome) 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 20041129	VA - (1 Mo. Pre –Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, without Neurologic Abnormality	5299 5237	10%	Degenerative Disc Disease of L5-S1	5242	10%	20050104	
Other x 0  (Not in Scope)	Other x 2 	20050104	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20020531(most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Chronic Low Back Pain Condition.  The narrative summary notes that since August 2001 (4 years prior to separation) the CI had a history of chronic LBP without radiation to the lower extremities (LE) or neurological symptoms.  Lumbar magnetic resonance imaging (MRI) on 16 July 2002 showed lower lumbar degenerative disc disease with a small disc protrusion at L5-S1 without any spinal canal stenosis or nerve impingement.  Neurological evaluation performed on 19 August 2003 noted normal gait and full range-of-motion (ROM) of the back without muscle spasm and with normal strength, sensation, and reflexes of the bilateral LE.  Evaluation by a spine specialist on 20 August 2003 indicated MRI in August 2003 was unchanged and flexion-extension spine X-rays did not show any dynamic instability.  The examination noted limited painful extension and normal flexion, without muscle spasm or other abnormal findings.  
At the MEB examination performed on 15 October 2004, approximately 4 months prior to separation, the CI reported chronic daily back pain and stiffness, worse with activity and use of over the counter anti-inflammatory medication as needed.  The MEB physical examination noted no tenderness of the spine and cited physical therapy measured thoracolumbar ROM of flexion of 75 degrees, extension to 5 degrees and combined thoracic lumbar (TL) ROM of 142 degrees, with an otherwise normal examination.

At the VA Compensation and Pension (C&P) examination on 4 January 2005, performed a month prior to separation, the CI reported constant localized back pain, with muscle spasms.  The CI reported that he could function without medication for the pain; there were no periods of incapacitation and he had not lost any work time due to the back condition.  The VA examination noted normal gait and posture and midline lumbar tenderness.  Straight leg raise testing was reported as positive bilaterally.  There was full TL ROM with pain, without muscle spasm.  There were no signs of intervertebral disc syndrome (IVDS) with chronic nerve root involvement.  Bilateral LE strength, sensation and reflexes were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5299-5237 (analogous to lumbar strain) and the VA also rated it 10%, coded 5242 (degenerative arthritis of the spine).  The Board agreed that the evidence in record supported the 10% rating according to the current VASRD General Formula for rating the spine.  At the MEB the CI had TL flexion of “greater than 60° but not greater than 85°” and TL combined ROM of “greater than 120° but not greater than 235°” and at  the pre-separation C&P examination the CI had painful but normal ROM and no muscle spasm was present on either examination.  At the C&P examination the CI did not meet the threshold for a compensable rating based upon TL ROM, but did meet a 10% rating IAW §4.59 (painful motion).  The Board reviewed to see if there was any path to a higher evaluation than 10%, but there was no “muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour;” no documentation of incapacitating episodes due to the back condition to rate as IVDS (5243); or, evidence of ratable peripheral nerve impairment in record that would provide for additional or higher rating of the back condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59, 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.  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 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 20131022, 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 XXXXXXXXXXXXXX, AR20150006969 (PD201301886)

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:

						         
CF: 
(  ) DoD PDBR
(  ) DVA