RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00286
BRANCH OF SERVICE:  Army	BOARD DATE:  20141114
SEPARATION DATE:  20070709

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-7 (13F40/Fire Support Specialist) medically separated for chronic 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 condition, characterized as “lumbar disk dissication [sic] with annular tear L5-S1”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (neck pain, headaches and cold urticaria) for PEB adjudication.  The Informal PEB adjudicated his back pain as unfitting, rated at 10% and the three remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Several medical issues weren't addressed during the MEB process. Those issues are Headaches, Traumatic Brain Injury (TBI), Sleep Apnea and Post Traumatic Stress Disorder (PTSD). The initial MEB paperwork states Headache disorder on DA Form 3947 and DD form 2807-1 page 2. The headaches weren't addressed during the MEB process, my medical records indicate I suffered a concussion when my team and Stryker fire support vehicle were involved in a direct IED strike while conducting combat operations in the Al-Anbar Province of lraq.  During the MEB process Headaches and TBI weren't addressed. Upon my initial VA claim was given a service connected rating for the concussion, after further testing I was given a service connected rating for TBI and learned that the headaches I've been dealing with are related to the TBI sustained as a result from the IED blast.  On the Report of Medical History DD Form 2807-1 page 2, section 29, item 17d, states, "After returning from Iraq I had problems sleeping and staying asleep. I wouldn't sleep for more than 2hrs at a time for about 4 months." This issue wasn't addressed by the Army, but was later addressed by the VA, I was diagnosed with Memory Problems, Insomnia and Sleep Apnea. I was issued a CPAP machine and currently have sleep related issues.  Post Traumatic Stress Disorder (PTSD) wasn't addressed upon redeployment or the MEB process. I was given a PTSD screen by the VA and have been given a service connected rating by the VA for PTSD.”

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 and the requested headache condition, which was determined to be not unfitting by the PEB, is likewise addressed below.   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 20070523	VA - (2 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbar Spine Degenerative Disc Disease with Bulging Disc L4-L5, L5-S1 with Annular Tear L5/S1	5243	10%	20070910	
Headache Syndrome	Not Unfitting	Concussion with Loss of Consciousness with Residual Headaches	8100	10%	20070910	
Other x 2  (Not in Scope)	Other x 10 	
Rating:  10%	Combined:  40%	
* Derived from VA Rating Decision (VARD) dated 20071120 (most proximate to date of separation)   

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests his ratings should have been conferred for other conditions documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short the member’s service career and then only to the degree of severity present at the time of final disposition.  However the Department of Veteran Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veterans disability rating should his degree of impairment vary over time.

Low Back Condition.  The CI was involved in an improvised explosive device explosion that struck his vehicle while manning a gunners’ station in early 2006; the incident caused him to strike the gunners hatch, causing bruising to numerous body areas including his low back.  X-ray images revealed lumbosacral disc disease.  Through conservative treatment, his back pain improved.  At the MEB narrative summary (NARSUM) examination dated 27 April 2007 
(2 months prior to separation), the CIs’ chief complaint was “I currently have lower back pain”.  His physical examination was limited and revealed normal but painful range-of-motion (ROM).

The commander’s statement reflected outstanding performance with limited physical training ability and recommended MOS reclassification or instructor training.  His permanent profile listed “lumbar disc herniation” as the sole diagnosis.  There were no periods of VASRD defined incapacitating episodes.

At the VA Compensation and Pension (C&P) evaluation dated 10 September 2007 (2 months after separation), the CI reported daily LBP aggravated by prolonged sitting or extended running.  The physical examination revealed a normal gait, but painful motion.

The Board directs attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized similar primary codes of 5237 (lumbosacral strain) and 5243 (intervertebral disc syndrome) respectively; with the PEB citing pain and tenderness while the VA cites painful motion.  Board members first agreed that sufficient evidence of painful motion was present to justify the rating of 10%.  Board members agreed that absent spasms or guarding, there was no support for a rating higher than the PEB’s 10% under VASRD §4.59 (painful motion).  After due deliberation, considering all of 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’s adjudication for the LBP condition.

Headache Syndrome Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the headache syndrome was 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.  In conjunction with the previously described injury, the NARSUM indicated that the CI also experienced a period of unconsciousness and a neck injury with resultant headaches.  The service treatment record was absent of primary encounters for headaches.  The headache syndrome condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the service treatment records that the “resultant” headache condition 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’s fitness determination for the headache syndrome condition and so 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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended headache syndrome condition, the Board unanimously recommends no change from the PEB’s determination as not unfitting.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140108, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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, AR20150004314 (PD201400286)

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						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA