RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX 	CASE: PD-2014-00734 
BRANCH OF SERVICE:  Army	BOARD DATE:  20150507
SEPARATION DATE:  20070409

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Bradley Fighting Vehicle System Maintainer) medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) but was authorized to perform an alternate physical fitness test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions of posttraumatic stress disorder (PTSD), insomnia and hypertension for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 0%, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.  

CI CONTENTION:  “The injury was incurred while I was in active duty, made worse by continuing service.  I was forced to medically discharge.  Hypertension and PTSD were not considered in the MEB.  I have been and am currently being treated for both.” 

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 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/Naval 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 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:  

 IPEB – Dated 20070326	VA*  1 month Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low back Pain	5237	0%	Lumbar Spine Degenerative Disc Disease	5242	20%	20070515	
PTSD	Not Unfitting	PTSD, also claimed as
Insomnia	9411	10%	20070613	
Hypertension 	Not Unfitting	Hypertension	7101	0%	20070515	
Insomnia (related to PTSD)	Not Unfitting	Subsumed under PTSD rating above	
Other x 0 (Not In Scope)	Other x 2	
RATING:  0%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20070802 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Low back Pain.  The CI’s history of low back pain began during his deployment in October 2004 after he attempted to lift a 300 pound object (power take off) by himself.  He reportedly felt instant pain and his back locked up in the forward flexed position.  He immediately sought medical care and received a steroid injection, had X-rays that were normal, and was issued a temporary profile.  The CI remained on limited duty for the remainder of his deployment and although he had limited duty and took non-steroidal anti-inflammatory medications, his back pain had not improved.  He participated in physical therapy (PT), had repeated steroid injections, and TENS; all were of limited benefit.  In addition to the daily back pain, the CI experienced tingling and numbness in the lower extremities with mild weakness that manifested by occasional stumbling and “giving out” of the legs.  In February 2006, the CI underwent consultation with a civilian spine specialist and was assessed with degenerative disc disease, lumbar spine, facet arthrosis, bilateral lower extremity numbness, myofascial pain, and back pain.  He was considered not to be a surgical candidate at the time and was subsequently referred for facet blocks.

The NARSUM noted that although the CI’s back pain persisted he requested and was granted clearance to deploy with his unit.  Radiographs of the lumbar spine in April 2006 was read as “normal”.  The CI deployed in July 2006 under a waiver, and under temporary profile, completing the remainder of the deployment with his unit until November 2006.  He denied sustaining any injuries during the second deployment, and he served primarily on the recovery team.  The CI was evaluated by PT while deployed and again this was of limited benefit.  He was re-evaluated by the spine specialist upon re-deployment and due to increased bladder symptoms; an MRI was completed in January 2007.  The MRI results interpreted by the spine specialist showed degenerative disc disease (DDD) with loss of disc hydration and disc height space at L4-L5 with contact and minimal displacement of the L5-S1 nerve root.   Facet degeneration was appreciated at L4-5.  The spine specialist indicated the possible need for surgical intervention for the purpose of improving quality of life.  Follow up visit noted that the surgery would not be in the best interest at the time but remained an option.  

The NARSUM dated 13 February 2007 documented the report of daily constant back pain at 6/10 intensity, primarily focused in the midline of the back, just above the tailbone.  He reported occasional numbness and tingling in the upper medial lower extremities, with occasional slight weakness.  Ongoing bladder and bowel symptoms were denied.  The CI noted one of his medications did provide some pain relief.  The examiner documented range of motion (ROM) recorded on the day prior to the NARSUM recorded forward flexion on three trials of 46, 35, and 36 degrees, limited by pain, and extension of 15, 12, and 16, also limited by pain.  The examiner noted that none of the eight Waddell’s signs were positive, and there was mild tenderness to palpation over the spinous processes but no palpable spasm.  

At the VA Compensation and Pension (C&P) spine examination dated 15 May 2007, a month after separation, the examiner documented a normal appearing spine, normal gait, absence of spasm, tenderness to palpation, and absence of sensory and motor deficits.  The ROM flexion was recorded at 60 degrees with pain beginning at 45 degrees; extension of 0 degrees with pain, and there were no additional limitations following repetitive ROM.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition 0% for pain limiting motion coded 5237 (lumbosacral strain).  The VA rated 20% coded 5242.  The PEB opined the ROM flexion was limited by pain alone.   The higher 20% rating under the general spine codes requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion greater than 30 but not greater than 60 degrees.    The Board is required to evaluate ROM based on the VARSD and its’ directive.  The VA rates limitation of motion due to pain, at the point in which the examinee can no longer continue the motion.  Both the NARSUM and VA examiners recorded ROM flexion in the 30-60 degree range.  Therefore, at the time of separation, the CI met the 20% rating criteria. The Board also considered code 5243 (intervertebral disc syndrome); however, this code did not support a higher rating since there was no evidence of incapacitating episodes of at least six weeks duration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20%, coded 5237 for the chronic low back pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions of PTSD, hypertension, and insomnia related to PTSD were 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.  None of the above contended conditions were not profiled or implicated in the commander’s statement and none were judged to fail retention standards.  The CI was referred for a full psychiatric assessment two months prior to separation, and was assessed with PTSD and was provided a 30-day prescription for depression/anxiety.  Psychiatric history was negative for hospitalizations, panic attacks, and suicidal or homicidal ideation.  One month after separation, the VA noted that he was not in any mental health treatment and was no longer on the antidepressant medication due to potential interaction with the medication he took for his back pain.  All of the contended conditions were reviewed and considered by the Board.   There was no performance based evidence from the record that any of these conditions 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 any of the contended 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 low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended PTSD, hypertension, and insomnia related to PTSD conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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:  

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140207, 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, AR20150013204 (PD201400734)

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