RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01743
BRANCH OF SERVICE:  Army	BOARD DATE:  20141210
SEPARATION DATE:  20070613 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (M1 Armor Crewman) medically separated for chronic back pain, without neurologic abnormality.  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 back condition, characterized as “chronic back pain” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic back pain, without neurologic abnormality” as unfitting, rated 10% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “Severe lower back pain witch hinders me from working, standing or sitting for a length of time, as well as performing daily tasks.”  

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 20070412	VA - (3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, without Neurologic Abnormality	5299-5237	10%	Lumbar Strain (claimed as back Injury)	5237	20%	20070911	
Other x 0 (Not in Scope)	Other x 4		
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20080403 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Back Pain Condition.  The CI first reported middle and upper back pain during pre-deployment training in late 2006, without discrete injury or direct trauma and, persisted throughout the balance of his service career.  X-rays revealed no pathologic abnormality and the wearing of body armor aggravated his symptoms of non-radicular pain.  Despite aggressive physical therapy his symptoms remained and an MEB was initiated.  There were no periods of VA Schedule for Rating Disabilities (VASRD) defined incapacitation.  At the MEB narrative summary exam performed on 24 January 2007; 5 months prior to separation, the CI endorsed having “constant back pain” causing the inability to march 2 miles with a full field load, construct a fighting position, or do 5-second rushes under direct or indirect fire.  He reported the inability to perform sit-ups or push-ups because of pain.  “The [CI] feels he is unable to perform any unlimited aerobic activities at this time but can jog, bike, swim and walk at his own pace and distance.”  The physical examination (PE) revealed tenderness in the lower thoracic and upper lumbar spine.  His spinal range-of-motion (ROM) was full and non-painful and his pain rating was described as “slight and constant.”  The commander’s statement validated the CI’s inability to perform the required duties of his MOS and the permanent profile listed “mid back pain” as the sole diagnosis.

The VA general Compensation & Pension exam performed on 11 September 2007; 3 months after separation the CI endorsed a constant low back pain that extends into his mid-back without associated weakness, numbness or extremity involvement.  He additionally endorsed “flare-ups” two to three times per week lasting for a “few minutes.”  He is unable to stand or sit for more than 10 minutes.  The PE revealed normal posture, gait and spinal curvature.  There was decreased painful thoracolumbar ROM.  Peripheral strength, sensation and reflexes were normal.  There was no comment regarding the presence of guarding.  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.

Thoracolumbar ROM
(Degrees)	MEB ~ 4 Mo. Pre-Sep
	VA C&P ~ 3 Mo. Post-Sep
	
Flexion (90 Normal)	90 	60 	
Extension (30)	30 	20	
R Lat Flexion (30)	30 	25	
L Lat Flexion (30)	30 	25	
R Rotation (30)	30 	30 	
L Rotation (30)	30 	30 	
Combined (240)	240	190 	
Comment	(+) tenderness	painful motion	
§4.71a Rating	10%	10%-20%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition differently, they both utilized (in various combinations) the same 5237 code (lumbosacral strain) and rated at 10% and 20%, respectively.  Board members agreed that sufficient evidence of either painful motion or localized tenderness not resulting in abnormal gait or spinal contour was present IAW VASRD §4.59 and or §4.71a in supporting the PEBs 10% rating.  Board members then discussed the degree of probative value between the MEB and VA examinations (having significant implications for the Board's rating recommendation) and agreed that it was the totality of both examinations that addressed proper probative value distribution in this case.  The single entry of measured flexion at the VA exam was the primary issue.  Members deliberated over 10% or 20% impairment ratings associated with each exam’s flexion ROM.  VASRD’s 20% criteria is forward flexion greater than 30 degrees, but not greater than 60 degrees.  
Board members considered and agreed that in the absence of any interim injury or inciting adverse event coupled with the persistent presence of a normal gait, the evidence remained more consistent at a level of 10% impairment.  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 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.  As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the back condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic back condition 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 20140422, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20150008235 (PD201401743)

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