RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00259
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20060207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Duty E3, Bradley Fighting Vehicle Mechanic, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION:  “Migraines, and chronic back pain.”  The applicant’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 Veterans Affairs Schedule for Rating Disabilities (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:

SERVICE PEB - 20051201	VARD - 20070407	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP…without Motor Abnormality	5299-5242	10%	Bertolotti’s Syndrome…	5299-5237	NSC	20060518	
			HNP L4-5 and L5-S1…	5243	NSC	20070315	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	10%	STR	
COMBINED RATING:  10%	COMBINE RATING FOR ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The record showed the CI was initially seen for low back pain (LBP) on 28 October 2002 after involvement in a motor vehicle accident (MVA).  He had persistent pain even after treated with medications, duty restrictions, injections, and chiropractic therapy.  Magnetic resonance imaging (MRI) on 18 February 2004 revealed degenerative disc disease (DDD) at L4-5 and L5-S1 without compromise of the spinal cord or nerve roots.  During an orthopedics examination on 24 June 2004 he was diagnosed with Bertolli syndrome, LBP associated with a transitional lumbo-sacral vertebra, a relatively common congenital abnormality.  The narrative summary (NARSUM) performed on 14 March 2005, 11 months prior to separation, relied on a physical examination dated 19 November 2004, 15 months prior to separation.  This examination noted the CI in significant pain and with range-of-motion (ROM) limited to 30 degrees flexion and 5 degrees extension.  At the Medical Evaluation Board (MEB) examination on 31 May 2005, 8 months prior to separation, the CI reported progressive LBP since the MVA in 2002.  The MEB physical examiner noted electrodiagnostic testing had been normal in 2003.  On examination, he was noted to have pain-limited motion, but the actual measurements were not recorded.  He used a cane due to right leg and back pain.  The neurological examination was normal.  A neurology addendum to the MEB, for headaches, dated 13 October 2005, 4 months prior to separation, noted a normal neurology evaluation including gait.  Five days later, a physical therapy examination performed ROM testing that was limited by pain and is charted below.  Gait and posture were not addressed.  An addendum to the MEB for shortness of breath recorded that the CI had a limp and was slow to move to the examination table.  The examiner did not record the presence of either spasm or guarding.  Three weeks later on 07 November 2005 an addendum to the MEB NARSUM for the back noted a normal neurological examination with lower back (muscle) spasm.  No comment was made on ROM or gait.

At the VA Compensation and Pension (C&P) examination performed 3 months after separation, the CI reported that he had been placed on quarters for 48 hours on 4 occasions during his military career.  On examination, his posture and gait were normal.  The CI did not display painful motion when dressing or undressing.  Tenderness was present, but the CI had “no objective evidence of painful motion, spasm, or weakness…”  The neurological examination was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10%, coded 5299-5242 (analogous to degenerative arthritis of the spine).  The VA initially determined that the back condition was not service connected as Bertolli syndrome with scoliosis is a congenital condition.  It was coded 5299-5237 (lumbosacral strain).  It was subsequently determined that the back condition could have been aggravated by the MVA in 2002 and the CI was rated at 10% for the back, retroactive to separation.  The Board found no route to a rating higher than 10% at separation.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the physical therapy and VA examinations proximate to separation.  There was no documented muscle spasm or guarding severe to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering 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 LBP condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine headache condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The migraine headache condition was forwarded to the PEB as not meeting retention standards and profiled P3.  It was not specifically implicated in the commander’s statement.  Review of the medical record shows that that while the CI reported headaches 4-5 times a week which he treated with an abortant and rest in a dark room 3 times a week, this is not supported by the clinical record.  One visit for treatment in the 12 months prior to separation is in evidence.  The PEB noted “these headaches have been present for a long period of time and there’s very little evidence that they have adversely impacted his performance.”  The Board found no evidence to rebut this statement.  There was no performance based evidence from the record that migraine headaches significantly interfered with satisfactory duty performance.  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 migraine headache condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended migraine headache 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.  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 20131127, 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 XXXXXXXXXXXXXXXXXX, AR20160005829  (PD201400259)

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