RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02414
BRANCH OF SERVICE:  Army	BOARD DATE:  20150219
SEPARATION DATE:  20071103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6, (Infantryman) medically separated for low back pain (LBP).  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “…nonradicular low back pain…” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, along with three other conditions that didn’t fall below retention standards (see rating chart below), for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain…” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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:

PEB – Dated 20070713	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5243	10%	DJD & DDD of L-Spine….	5242-5243	20%	20070918	
Hypertension	Not Unfitting 	Hypertension		0%		
Hypercholesterolemia		No VA Placement	
Congenital Ptosis, Left Eye 			
Other x 0 (Not In Scope)	Other x 10 	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20080522 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back.  The narrative summary (NARSUM) notes that the CI developed back pain in 2002.  Notes in the service treatment record indicated that the pain radiated to both thighs and magnetic resonance imaging on 28 January 2002 showed advanced degenerative disc disease (DDD) with a herniated disc at L2-3.  A surgical diskectomy was performed on 2 October 2002 for LBP that radiated to the right lower extremity.  The CI initially had relief of the symptoms but reported his back pain was increased 6 months later following a ruck march.  The CI was deployed from August 2004 to July 2005.  In January 2006 the CI was referred for chiropractic care and had multiple treatments without improvement.  At an orthopedic evaluation on 8 January 2007 the CI reported midline LBP rated 3/10, without LE symptoms or other neurological problems.  On exam there was a normal gait and tenderness to palpation (TTP) of the lumbar spine with normal muscle tone.  Range-of-motion (ROM) was described as “flexion of the lumbar spine brings the fingertips twelve inches from the floor”.  Strength, sensation, and reflexes of the lower extremities were normal and straight leg raise testing was negative bilaterally.  Lumbar spine X-rays noted an antalgic stance to the left, with DDD and spinal arthritis, without abnormal motion or instability.  Lumbar spine computed tomography (CT) (because metal shrapnel in his face) showed DDD and spinal arthritis with spinal stenosis and neural foramen narrowing bilaterally at multiple levels.  The CI was referred to a pain specialist and had facet joint injections without benefit.  At a follow-up visit with the pain specialist on 3 May 2007, there was TTP of the lumbar spine and pain with flexion and extension and the examiner indicated the persistent LBP was likely disc related, with limited remaining treatment options and a MEB was initiated.

At the MEB examination on 8 June 2007, 5 months prior to separation, the CI reported back pain.  The MEB physical exam noted lumbar ROM as flexion of 90 degrees (normal 90), and combined ROM of 230 degrees (normal 240) with pain.  Slight scoliosis and no loss of the lumbar spinal curve (lordosis) were noted.

At the VA Compensation and Pension (C&P) examination on 18 September 2007, 2 months after separation, the CI reported he could stand for 45 minutes, walk without limitation, and lift 20 pounds, but could not run.  He reported daily LBP rated 3/10 without flare-ups or incapacitating episodes that required physician ordered bed rest in the last 12 months.  On exam there was a normal gait.  ROM was flexion of 88 degrees, with pain at end ROM and combined ROM of 165 degrees (with no ROM for extension noted).  Following three repetitions the ROM was flexion of 88 degrees, with pain from 55 to 88 degrees.  Lumbar spine X-rays on 13 September 2007 were unchanged.

At a VA C&P Neurology examination on 27 September 2007, for a traumatic brain injury assessment, the CI reported back pain without radicular pain or neurological symptoms.  The exam noted that the CI was able to heel/toe walk and had a normal gait and tandem gait, with normal strength, sensation, and reflexes of the bilateral lower extremities, with negative straight leg raise.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5243 (analogous to intervertebral disc syndrome) and the VA rated it 20%, coded 5242-5243 (intervertebral disc syndrome with spinal arthritis).  The evidence in record supports that the CI had painful flexion of 90 degrees and combined ROM greater than 120 degrees but not greater than 235 degrees, at both the MEB and C&P exams (rounded to the nearest 5 degrees as per VASRD instructions).  The C&P examiner noted that with ROM repetitions, the CI had pain beyond 55 degrees, but was still able to move throughout the full ROM, and the ROM was not limited to less than 90 degrees by pain.  The Board agreed that the evidence in record supports the 10% rating according to VASRD spine rating rules in effect at the time of separation and reviewed to see if there was support for the next higher evaluation of 20%, but there was no evidence of muscle spasm or guarding resulting in an abnormal gait or spinal contour at either the MEB or C&P exams.  There were no documented incapacitating episodes due to the low back condition in the 12 months before separation defined by the VASRD as “requires bed rest prescribed by a physician” or noted at the C&P, and there was no evidence of a peripheral nerve impairment for higher or additional disability rating.  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 low back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended hypercholesterolemia, hypertension, and congenital ptosis (drooping eyelid) of the left eye conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The NARSUM simply listed all three conditions and noted that they did not cause the CI to fall below retention standards.

The hypercholesterolemia, hypertension, and congenital ptosis (drooping eyelid) of the left eye conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so 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 low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypercholesterolemia, hypertension, and left eye ptosis conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.

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 20140520, 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, AR20150019019 (PD201402414)

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