RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02632
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20091220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Bridge Crewmember) medically separated for a low back pain (LBP) condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain due to lumbar disc degeneration” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded a “corneal ulcer-left eye” condition for PEB adjudication.  This case was adjudicated as part of the Pilot Disability Evaluation System (PDES).  The Informal PEB adjudicated “low back pain due to lumbar disc degeneration and lumbar spondylosis” as unfitting, rated 20%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).    The remaining condition was determined to be not unfitting.  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 20091023	VA* - (~3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5003-5239	20%	Degenerative Disc Disease, Lumbar Spine	5003-5239	20%	20090908	
Corneal Ulcer, Left Eye	Not Unfitting	Residual Bilateral Corneal Scars, Bacterial Keratitis	6001	0%	20090713	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20100113 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Low Back Pain.  Absent direct trauma, the CI insidiously developed LBP while deployed in 2008.  A radiologic evaluation revealed multi-level lumbosacral bulging disc as well as degenerative disc disease.  An initial orthopedic evaluation performed on 4 May 2009 was completely normal.  In June 2009 the CI was permanently profiled with a diagnosis of LBP and was referred to a MEB.  At the MEB narrative summary performed on 5 October 2009 (3 months prior to separation), the CI reported the inability to run or carry heavy materials.  The MEB physical examination (PE) was transcribed from the VA Compensation and Pension (C&P) exam which was performed on 8 September 2009 and noted decreased thoracolumbar range-of-motion (ROM).  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)	Ortho ~8 Mos. Pre-Sep
(20090504) 	MEB/VA C&P                           ~3 Mos. Pre-Sep
(20090908) 	
Flexion (90 Normal)	Normal	45	
Extension (30)		25	
R Lat Flexion (30)		20	
L Lat Flexion (30)		25	
R Rotation (30)		30	
L Rotation (30)		30	
Combined (240)	240	165	
Comment	-	-	
§4.71a Rating	0%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the low back condition at 20% utilizing the analogous code of 5239 (spondylolisthesis). Board members deliberated and agreed that the MEB/VA examination physical parameters clearly supported an impairment rating of 20% for limited spinal motion.  Board members agreed that a rating higher than 20% was not justified.  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 pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left eye corneal ulcer was 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 corneal ulcer was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.   The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that the corneal ulcer condition 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 contended left corneal ulcer condition and so no additional disability rating is 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 left corneal ulcer condition, the Board unanimously recommends no change from the PEB determinations 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 20140507, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

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 XXXXXXXXXXXXXXXXXXXX, AR20160003166  (PD201402632)

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 1O, 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