RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02200
BRANCH OF SERVICE:  Army	BOARD DATE:  20140821
SEPARATION DATE:  20020901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (77F/Petroleum Supply) medically separated for chronic back pain.  The back 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 back condition, characterized as “chronic lumbar and thoracic back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic pain, lumbar and thoracic spine” as unfitting, rated 10%, citing criteria of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40.  The CI made no appeals at that time and was medically separated.

CI CONTENTION:  “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 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.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – dated 20020611	VA – (4 mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5295	10%	Lumbosacral Strain	5295-5292	20%	20021230	
Other in Scope x 0	Other x 2	20021230	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030730 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Chronic back pain.  This CI has had a long history of back pain.  There was no specific injury or trauma associated with the onset of back pain.  Magnetic resonance imaging in February 2002 was interpreted as a negative study.  He was treated with medications and physical therapy (PT).  However, in spite of treatment, his back pain persisted and an MEB was initiated.  The MEB physical examination (PE) was in May 2002.  At that exam, the CI’s gait was slow but undisturbed.  There was some tenderness to palpation (TTP), but no evidence of any bony abnormality or step-offs.  Range-of-motion (ROM) testing of the lumbar spine revealed forward flexion to 90 degrees (with pain).  Neurological exam of the lower extremities was normal.

The CI was separated from service in September 2002.  Four months later, he had a VA Compensation and Pension exam.  At that exam, his gait was antalgic.  PE of the back showed some TTP over the paraspinal muscles of the lumbosacral spine.  There was no evidence of muscle spasm.  Straight leg raise was positive bilaterally at 45 degrees.  Neurological exam showed no focal abnormalities.  On 25 February 2003, about 6 months after separation, the CI had another VA exam.  At that exam, his gait was guarded, but normal.  There was mild paraspinal TTP at L4-L5.  There was no spine deformity, back muscle spasm, or paraspinal muscle atrophy.  In the standing position, the CI’s pelvis was equal.  ROM testing of the lumbar spine revealed painless active forward flexion to 60 degrees.  Extension backward was 15 degrees.  Lateral bending was 20 degrees (right and left).  Rotation was 25 degrees (right and left).  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized above.

The Board carefully examined all available evidence and directs attention to its rating recommendation.  The VA Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were modified on 23 September 2002, and then were changed again in September 2003.  The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment.  IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation.  The Board considered the data from the back examinations noted above.  The May 2002 MEB exam was just 16 weeks prior to separation, and therefore had significant probative value.  At that exam, the CI’s gait was slow but undisturbed.  ROM testing of the lumbar spine revealed forward flexion to 90 degrees.

Based on a thorough review of the evidence in the treatment record, the Board determined that, at the time of separation, the CI’s back condition was best described as “slight.”  There was insufficient evidence to support classifying the condition as “moderate” or “severe.”  After due deliberation, the Board determined that a disability rating of 10% was warranted.  The Board tried to find a path to a higher rating, using other codes which could be applied to the back pain condition.  The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a disabling spine abnormality which 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 satisfactory performance of military duties.  Therefore, 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.  As noted above, PEB reliance on DoDI 1332.39 was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the back pain 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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140505, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150006393 (PD201402200)

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