RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02120
BRANCH OF SERVICE:  Army	BOARD DATE:  20150121
SEPARATION DATE:  20070219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A/Automated Logistics) medically separated for chronic back pain.  The back condition did not improve adequately to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent U3/S1 profile and referred for a Medical Evaluation Board (MEB).  “Lumbago” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  An Informal PEB (IPEB) adjudicated chronic low back pain (LBP) without neurologic abnormality as unfitting, rated 0%.  The CI did not accept the IPEB findings, and submitted an appeal.  A subsequent Reconsideration PEB affirmed the back condition as unfitting, and increased the rating to 20%.  Upon review, the US Army Physical Disability Agency suggested that the case be sent back to the Military Treatment Facility for additional information.  The PEB was terminated. A second MEB forwarded “lumbago” and also identified and forwarded two medically acceptable conditions (migraine headaches and depression) for PEB adjudication.  In October 2006, a second IPEB was convened.  Chronic LBP without neurologic abnormality was found unfitting and rated at 20%.  The remaining conditions were found not unfitting.  The CI did not concur and asked for a formal hearing, but later withdrew that request and was medically separated.

CI CONTENTION:  “Veteran has chronic lumbar spine condition requiring surgery.  Also please consider all conditions.”

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: 

Army IPEB – Dated 20061016	VA* – (~ 8 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	20%	Mechanical Low Back Pain	5299-5237	10%	20060627	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	0%	20060627	
Depression	Not Unfitting	Adjustment Disorder 	9440	10%	STR	
Other x 0 (Not In Scope)	Other x 1 	
RATING:  20%	COMBINED RATING:  20%	
Derived from VA Rating Decision (VARD) dated 20070801 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Chronic Low Back Pain.  In January 2005, the CI slipped on ice and injured her back.  Magnetic resonance imaging of the lumbosacral spine was performed in February 2006, and it was normal.  She was treated with pain medication and physical therapy (PT).  However, the LBP persisted, and a MEB was initiated.  On 31 August 2005, she had a VA Compensation and Pension (C&P) exam.  The examiner wrote that the CI walked with a limp.  However, the examiner also wrote that gait, stance, and coordination were normal.  The spine was normal in appearance.  There was some tenderness to palpation (TTP), but no muscle spasm was noted.  Muscle strength was normal, and straight leg raise (SLR) was negative.  Neurological exam showed normal reflexes and no sensory deficits.  Range-of-motion (ROM) testing revealed thoracolumbar forward flexion of 70 degrees.

A second C&P exam was performed on 27 June 2006.  At that exam, the findings were very similar to the first exam.  The examiner wrote that the CI walked with a limp, but also wrote that gait, stance, and coordination were normal.  The spine was normal in appearance.  There was TTP, but no muscle spasm was noted.  Muscle strength was normal, and SLR was negative.  Neurological exam showed normal reflexes and no sensory deficits.  ROM testing revealed forward flexion of 85 degrees.  Three months later, on 26 September 2006, thoracolumbar ROM was measured by PT.  Forward flexion was 20 degrees on the first attempt, and 30 degrees on repetition.  Passive ROM testing showed 45 degrees of forward flexion.  There was pain with motion, and pain limited the ROM.  

The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	Ortho ~ 12 mos. Pre-Sep
	VA ~ 8 mos. Pre-Sep
	PT ~ 5 mos. Pre-Sep
	
Flexion (90 Normal)	70	85	30	
Combined (240)	210	235	195	
Comment	One year before DOS	Greatest probative value	Exam inconsistencies	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and the VA chose different rating options for the LBP condition.  The PEB assigned a rating of 20%, while the VA rated it 10%.  The Board noted the disparity between the back exams which are documented above.  At the September 2006 PT exam, active forward flexion was only 20 degrees on the first attempt, and 30 degrees with repetition.  The Board found some discrepancies and inconsistencies with that September 2006 PT exam, which caused the Board to question its validity and probative value.  For example, a limitation of thoracolumbar forward flexion to 20 degrees would certainly present difficulties with activities such as dressing oneself, sitting in a chair, riding in a car, or climbing onto the examination table.  The record does not indicate that the CI had any of these difficulties.  The examiner wrote: Pain limited ROM.  It is possible that 20 degrees is the point at which the CI experienced pain.  However, IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, spinal ROM is to be measured with or without symptoms such as pain.  We also know that the CI was pregnant at that time.  She may have had some discomfort related to her gravid uterus, and unrelated to her lumbar spine condition.   The Board determined that the inconsistencies in the September 2006 PT exam caused diminution in its validity and probative value.

The Board determined that the measurements from the June 2006 C&P exam had greatest probative value.  At that exam, forward flexion was 85 degrees and combined thoracolumbar ROM was 235 degrees.  IAW the VASRD §4.71a, a 10% rating is warranted when thoracolumbar flexion is greater than 60 degrees, but not greater than 85 degrees.  A 10% rating is also warranted when combined thoracolumbar ROM is greater than 120 degrees but not greater than 235 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 10% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 10%.

The Board also determined that there was no unfitting neuropathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of DoDI 6040.44 (which prohibits the Board from lowering the rating assigned by the Service PEB), the Board found insufficient cause to recommend a change in the PEB adjudication of the “chronic back pain, without neurologic abnormality.”

Other PEB Conditions.  Two other conditions were adjudicated by the PEB as not unfitting.  These two conditions were: migraine headaches and depression.  The Board’s main charge with regard to these two conditions is to assess the fairness of the PEB’s fitness determination.  The Board’s threshold for countering fitness determination 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.  The 19 September 2006 psychiatrist memorandum stated “depression is medically acceptable and meets retention standards.”  The 19 April 2006 neurology evaluation stated the headaches not are currently considered medically unacceptable.  Neither of these conditions were specifically profiled, nor implicated in the commander’s statement.  Both conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB adjudication for either of these conditions.  Therefore, 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 chronic back condition and IAW VASRD §4.71a and DoDI 6040.44 (which prohibits the Board from lowering the rating assigned by the PEB), the Board unanimously recommends no change in the PEB adjudication.  In the matter of the migraine headaches and depression, 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.

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 20140514, 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, AR20150010553 (PD201402120)

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