RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01433
BRANCH OF SERVICE:  Army	BOARD DATE:  20141217
SEPARATION DATE:  20081227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Transportation Coordinator) medically separated for back pain.  The back condition did not improve adequately 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).  “Low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded one other condition (depression) for PEB adjudication.  The Informal PEB found the back condition unfitting, rated 20%.  The depression was adjudicated as not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “IAW the Wounded Warrior Act, review of PDBR.”

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 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 IPEB – Dated 20080916	VA – based on Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	20%	Lumbosacral Strain	5237	10%	STR	
Other x 1 (Not In Scope)	Other x 9	
Rating:  20%	Combined Rating:  40%	
Derived from VA Rating Decision (VARD) dated 20090819 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Back Pain.  In February 2007, the CI injured his back in a motor vehicle accident.  Magnetic resonance imaging in July 2007 showed mild degenerative disc disease, without spinal stenosis or neuroforaminal narrowing.  He was treated with physical therapy and chiropractic measures.  His symptoms appeared to improve and he deployed to Iraq.  While deployed, he re-injured his back by lifting some heavy boxes.  In December 2007, the CI was medically evacuated from Iraq to the US.  Due to the chronic, persistent nature of his back pain, a MEB was initiated.  The MEB narrative summary was dictated on 16 April 2008.  At that exam, gait was normal.  The CI exhibited good range-of-motion (ROM) while removing his clothing.  There was good muscle strength in the lower extremities and no evidence of any muscle atrophy.  Neurological exam was normal.  Thoracolumbar ROM was measured and is summarized in the chart below.

On 30 September 2008, the CI was seen for follow-up in the Family Practice clinic.  At that exam, gait was normal and no muscle spasm was noted.  Straight leg raise was negative.  Neurological exam was normal.  Thoracolumbar ROM was normal, except for flexion of 45 degrees due to pain.  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 8 mos. Pre-Sep
(20080416)	FPC ~ 3 mos. Pre-Sep
(20080930)	
Flexion (90 Normal)	60	45	
Combined (240)	160	195	
§4.71a Rating	20%	20%	

The Board directed attention to its rating recommendation based on the evidence.  At each of the back exams noted above, flexion of the thoracolumbar spine was greater than 30 degrees, but not greater than 60 degrees.  IAW VASRD §4.71a, a 20% disability rating is warranted when thoracolumbar flexion is greater than 30 degrees but not greater than 60 degrees.  Therefore, the Board determined that a 20% rating was appropriate.  The Board tried to find a path to a higher rating for the back condition.  However, there was insufficient evidence of a significantly disabling back condition that would justify a higher rating.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the back pain 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 back pain, 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 20140321, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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, AR20150009556 (PD201401433)

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