RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02706
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Unit Supply Specialist) medically separated for chronic low back pain (LBP).  The back 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 “Lumbar spine: DDD w/ chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded 3 other conditions (pes planus [flat feet] with plantar fasciitis, epicondylitis [elbow tenderness], and intermittent asthma) for PEB adjudication.  These conditions were determined to meet retention standards.  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 CI made no appeals and was medically separated.  

CI CONTENTION:  The CI requested that the Board review all conditions. The complete submission is at Exhibit A.

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 20030218	VA* - (~1 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5295	10%	Degenerative Disc Disease, Lumbar Spine	5010-5290	10%	20030610	
Pes planus with Plantar Fasciitis	MEB Conditions; Not Addressed by PEB	R. Foot, Pes planus w/ Plantar Fasciitis	5284	10%	20030610	
		L. Foot, Pes planus w/ Plantar Fasciitis 	5284	10%	20030610	
Epicondylitis		No VA Placement	
Intermittent Asthma		Asthma	6602	10%	20030610	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 4	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20030811 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.  The narrative summary (NARSUM) and treatment record noted chronic LBP unresponsive to conservative therapy of physical therapy and anti-inflammatory medication.  X-rays were normal and an MRI showed disc bulging at several levels with a moderate protrusion at the L5-S1 level with minimal bilateral neuroforaminal encroachment.  At the MEB exam, the CI reported chronic back pain with flares with physical training and aggravation with activities.  He denied radicular symptoms.  Multiple treatment notes documented painful motion and below normal back range-of-motion (ROM) comments.  The MEB physical exam, performed 3 months before separation, noted back ROM that was normal and no tenderness, spasm, or visible deformity.  Straight leg raising sign (for radicular symptoms) was negative bilaterally.  Neurological examination revealed normal sensation, normal motor strength, and normal reflexes.  The examiner noted that the orthopedic consultant had documented minimal tenderness at the border between the thoracic and lumbar spine (T-12 spinal process).  The orthopedic consultant had also interpreted a lumbar X-ray as having “a very mild wedging of L1 spinous body, but otherwise, is unremarkable.”  

At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported similar LBP onset and symptoms.  X-ray demonstrated “no significant abnormality found,” with “minimal wedging at L1 …with maybe 10% loss of anterior height …” and degenerative changes.  Exam documented normal forward flexion with slightly limited lumbar ROM in all other axis.  Gait, neurologic, reflex, and motor exams were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The 2003 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 applicable coding options for this case are excerpted below.  

5285 Vertebra, fracture of, residuals:
With cord involvement, bedridden, or requiring long leg braces .........100
Consider special monthly compensation; with lesser 
involvements rate for limited motion, nerve paralysis.
Without cord involvement; abnormal mobility requiring neck 
brace (jury mast)....................................................................................60
In other cases rate in accordance with definite limited motion
or muscle spasm, adding 10 percent for demonstrable deformity
of vertebral body.
Note: Both under ankylosis and limited motion, ratings should
not be assigned for more than one segment by reason of
involvement of only the first or last vertebrae of an
adjacent segment.

5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20	
Slight ........................................................................................................................................ 10
5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ...................................................... 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
	          in standing' position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10
There was no evidence of intervertebral disc syndrome, radiculopathy, or incapacitating episodes (physician prescribed bed rest) for either additional peripheral nerve rating or any alternate rating under code 5293 (intervertebral disc syndrome).  The VA rating of 5010-5290 was for arthritis due to trauma and for cervical limited motion; however, this was adjudged as almost certainly a VARD typo as all VA exam entries and the final rating determination indicated lumbar spine symptoms and pathology without evidence of cervical disability.  

The Board discussed the exams in evidence and determined that the VA exam was closest to separation; best aligned with the disability picture of the entirety of the Service records and therefore had the highest probative value for rating.  The Board agreed that the limitation of motion was “slight” (10% under 5292) and discussed possible addition of 10% to the limited motion rating due to L1 anterior wedging (demonstrable deformity of vertebral body under code 5285).  Although not all vertebral wedging is equated to a vertebral fracture residual, the Board considered that with a history of trauma that it was within reasonable doubt (§4.3) to concede the CI’s wedging as analogous to a fracture residual.  Given the definite slight limited motion of the lumbar spine and demonstrable deformity of the L1 vertebral body, coding under 5285-5292 would be 10% plus 10% for a 20% rating for the back condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition.  

Contended PEB Conditions.  The contended pes planus with plantar fasciitis, epicondylitis, and intermittent asthma conditions were noted on the MEB as meeting retention standards and were not specifically addressed by the PEB.  The Board considered this an implied PEB determination as a finding of not unfitting for these conditions.  The Board’s main charge is to assess the fairness of the MEB’s/PEB’s determination that the contended 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 pes planus with plantar fasciitis, epicondylitis, and intermittent asthma conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  The NARSUM indicated the asthma condition in past medical history as “intermittent asthma although his pulmonary function tests were normal.  He still uses an albuterol meter dose inhaler as needed.”  The MEB examiner stated “incidentally noted was tenderness to pressure over the right lateral epicondyle (elbow) and also tenderness in both feet over the posterior plantar fascia with mild pes planus.”  All contended conditions 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’s implied 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 back condition, the Board unanimously recommends a disability rating of 20% (10%+10%), coded 5285-5292 IAW VASRD §4.71a.  In the matter of the contended pes planus with plantar fasciitis, epicondylitis, and intermittent asthma conditions, the Board unanimously agrees that it cannot recommend any of those conditions for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5285-5292	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140609, 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, AR20160003740 (PD201402706)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA