RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	 	CASE:  PD-2013-01967
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20140828
SEPARATION DATE:  20050520

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63B/Wheeled Vehicle Mechanic) 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 (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB also identified and forwarded four other conditions for Physical Evaluation Board (PEB) adjudication as medically acceptable.  The Informal PEB adjudicated the low back condition as unfitting, rated at 10%.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have been unable to get work or sustain physical condition for work and quality of life for the period starting Jan 2007.  I want to request 100% disability rating and unemployability status, for service connected health problems and development of Type 2 Diabetes with pump insulin.  PTSD persists and severe depression.  My records reflect last dates of employment.  Since then I have unable to work and/or gain employment in my field of training and MOS 63-s.  My conditions prohibit me to get retrained.  Please refer to med records for chronic conditions I still have my last board review and appeal filled and ultimately denied.”

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; the not unfitting left ankle, left knee, left shoulder and heart murmur conditions were also determined to be within the Board’s defined DoDI 6040.44 purview.  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 20050316	VA - (Exam ~ 7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective LBP…	5299-5242	10%	Lumbar Spine Strain L-5,S-1	5237	20%	20060109	
Left Ankle Pilon Fracture	Not Unfitting	Left Leg Fracture	5262	20%	20060109	
Left Knee Pain		No VA Entries	
Left Shoulder Pain			
Heart Murmur			
Other x 0 (Not in Scope)	Other x 9 (Not in Scope)	20060109 	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20070711 (most proximate and available to date of separation)

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.  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.

Low Back Condition. The CI reported the onset of LBP on 20 November 2000 after lifting some heavy tires.  He was treated conservatively, but had persistent pain leading to a magnetic resonance imaging (MRI) on 11 January 2002 which showed a herniated disc on the left at L5-S1 with impingement of the left S1 nerve root.  He was evaluated in neurosurgery and elected to continue conservative management; however, this was not successful and on 6 August 2002 he underwent surgery on the herniated disc.  This was complicated by a post-operative infection which responded to treatment.  Prior to surgery, he was noted to have motor, sensory and reflex diminishment in the L5 and S1 distributions.  These persisted, but improved in the post-operative period.  Electrodiagnostic studies on 9 April 2003 showed mild left L4 and L5 radiculopathy without evidence of pathology at S1.  His pain continued and an MRI performed on 17 September 2003 showed post-operative scarring with nerve root involvement.  During his recovery from his back condition, the CI was in a motor vehicle accident on 1 June 2004 with a fracture of his left ankle which was treated with surgery.  Despite rehabilitation, he continued to have pain and was entered into the Disability Evaluation System process.  Repeat electrodiagnostic studies on 19 November 2004 were normal.  The examiner noted break-away weakness on the left, but normal reflexes with upper motor neuron signs (such as weakness, poor tone), but these were not specified.  Sensation was diminished in a stocking distribution, a non-anatomic pattern.  Provocative testing for nerve root irritation was negative.  A repeat MRI on 22 November 2004 showed degenerative disc disease and scar tissue encircling the left S1 nerve root.  At the MEB examination performed that same day, the examiner noted flexion of 100 degrees (normal is 90) and reduced extension at 20 degrees (normal is 30.)  Rotation and lateral bending both exceeded VA normal values (30) at 40 degrees bilaterally.  Non-organic signs of pain were absent.  

The narrative summary (NARSUM), dictated by an orthopedic surgeon, was dated 30 November 2004, 6 months prior to separation.  The CI reported ongoing LBP with occasional radiation into his left thigh.  He also reported occasional numbness in the left foot and left foot drop.  On examination, he was noted to have an antalgic gait (one protective from pain) and a left foot drop.  The paraspinal muscles were tender, but spasm was not documented.  The range-of-motion (ROM) is below and increased his symptoms at end range.  Weakness of the left leg muscles was present at 4/5 as well as diminished sensation in the left L4, L5 and S1 nerve root distributions.  The left Achilles (ankle) reflex was reduced compared to the right.  It was thought that his symptoms would continue to improve, but not sufficiently for him to return to his MOS without recurrence and aggravation of his symptoms.  On 1 February 2005, the MEB determined that the back condition was medically unacceptable.  Three days later, the CI requested continuation of active duty (COAD) if found unfit.  The PEB determined that the back was unfitting on 3 May 2005.  It noted that the left lower extremity weakness was not “substantiated by electrodiagnostic studies or intermittent examinations.”  His ROM was limited by pain.  the request by the CI for COAD was also noted.  

At the VA Compensation and Pension (C&P) exam performed 7 months after separation on 9 January 2006, the ROM was reduced as shown below in chart.  The motor function was reduced as seen in 4/5 measurements for the knee and ankle in both flexion and extension on the left.  The knee was attributed to the back condition and the ankle to the ankle fracture.  The CI was noted to have a limp, but did not use an ankle brace.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  The Board noted the significant difference in these two measurements from those obtained by the MEB examiner.
Thoracolumbar ROM
(Degrees)	NARSUM ~5 Mo. Pre-Sep	VA C&P ~7 Mo. Post-Sep	
Flexion (90 Normal)	45	45	
Combined (240)	155	105	
Comment	Motor and sensory changes, but normal electrodiagnostic studies	DeLuca negative	
§4.71a Rating	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA rated the back at 10% and 20%, respectively, using the coding options 5299-5242, degenerative arthritis of the spine and 5237 (lumbosacral strain), respectively.  The Board considered that the MEB examination would support a 10% rating, but that the NARSUM and C&P examinations warranted a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and 4.7 (higher of two examinations), the Board recommends a disability rating of 20% for the back condition.  The Board noted that neither the PEB nor the VA rated the CI for a neuropathy.  Both documented weakness.  However, the physical medicine specialist (at the second electrodiagnostic testing) noted break-away weakness (not a true organic weakness) and a non-anatomic sensory loss.  The actual electrodiagnostic testing was normal without evidence of a neuropathy or radiculopathy.  An abnormal gait was present at the NARSUM examination along with weakness, but this examination was accomplished 5 months after an ankle fracture and subsequent surgery.  The Board concluded therefore that a preponderance of evidence does not support the addition of this condition as separately unfitting for an additional disability rating.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left ankle, left knee, left shoulder, and heart murmur conditions were not unfitting.  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.  The left ankle was included in the L3 profile and left foot drop noted on the profile written after the left ankle surgery.  None of the conditions were specifically implicated in the commander’s statement and none were judged to fail retention standards.  The VA examiner noted the ankle weakness and use of a brace.  The evidence was reviewed by the action officer and considered by the Board.  There was not a preponderance of performance based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance sufficient to overturn the PEB adjudication.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the left ankle, left knee, left shoulder and heart murmur conditions and so no additional disability ratings are 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 back condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended left ankle, left knee, left shoulder, and heart murmur conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication as not unfitting.  In the matter of the radiculopathy condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Subjective Low Back Pain	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131028, 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, AR20150007096 (PD201301967)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		
CF: 
(  ) DoD PDBR
(  ) DVA