RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02263
BRANCH OF SERVICE:  Army	BOARD DATE:  20150724
Separation Date:  20010930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Personnel Administration Specialist) medically separated for low back pain (LBP).  The LBP condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic LBP,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic mechanical LBP” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals 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 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 20010806	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical LBP	5295	10%	Discogenic LBP L3-4 and L4-5	5299-5293	0%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20020916 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

LBP Condition.  The CI developed LBP without an injury in 2000.  She underwent physical therapy (PT) and was evaluated by Rehabilitation Medicine for LBP that radiated down the back.  A lumbar spine CT scan performed in September 2000 showed disc bulges at L3-4 and L4-5 without nerve root impingement.  Lumbar spine X-rays in September 2000 and April 2001, done for mild L4-S1 tenderness, were normal.

The MEB narrative summary exam approximately 7 months prior to separation documented that the CI reported constant LBP rated at 9 on most days and 9/10 on other days.  The pain was increased with prolonged standing, walking or activity.  She completed PT treatment without any improvement in back symptoms.  The CI denied any paresthesias (sensory abnormalities such as tingling or numbness) and the examiner indicated that she denied any herniated disc type symptoms (radiculopathy).  She had functional limitations of an inability to perform a fitness test, an inability to do push-ups, sit-ups or running.  On physical exam, there was full range-of-motion (ROM) with all testing, tenderness to palpation (TTP) over the lumbar spinal muscles (particularly over the L5 area), normal strength, sensation and reflexes.  The DD Form 2808, Report of Medical Examination, approximately 5 months prior to separation, documented full ROM, negative straight leg raise testing (for radicular signs), and no tenderness.  A treatment note from 4 months prior to separation documented “limited” ROM and painful motion.

The CI failed to show for her VA Compensation and Pension (C&P) exam proximate to separation.  The first C&P exam in evidence was dated 28 June 2011 (over 9 years after separation).

The Board directed attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The earlier criteria were subject to the rater’s opinion regarding degree of severity, as opposed to the more objective current standards with quantifiable rating thresholds grounded in ROM measurements.  The PEB coded the “Chronic Mechanical LBP” condition as 5295 (Lumbosacral strain) and rated at 10% (“with characteristic pain on motion”).  The VA coded the “Discogenic LBP L3-4 and L4-5” conditoin rated 0% as analogous to 5293 (Intervertebral disc syndrome) was based on failure to show for the C&P exam.  As noted above, the VA increased the CI’s back rating to 20% based on their June 2011 C&P exam.  This remote VA exam was adjudged as after separation worsening and not indicative of the CI’s disability condition proximate to separation.  The STR indicated functional loss with activities, TTP and some limited back ROM.  There were no lower extremity symptoms or other symptoms compatible with sciatic neuropathy.  VASRD codes 5292 or 5293 could have alternatively been used to rate this condition, but would result in no higher than a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.40 (functional loss), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP 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 LBP 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 20140514 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 XXXXXXXXXXXXXXXXXX, AR20160000290 (PD201402263)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA