RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03023 
BRANCH OF SERVICE:  Army	BOARD DATE:  20150512
SEPARATION DATE:  20060206 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Imagery Ground Station Sergeant) medically separated for chronic back pain.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty, but was authorized an alternate event to satisfy physical fitness standards.  He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB).  “Chronic back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded “hearing loss lower and mid frequencies left ear” for PEB adjudication.  The Informal PEB adjudicated “chronic back pain, without neurologic abnormality” as unfitting, rated 10% with likely application of AR 635-40 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The hearing loss was determined to be not unfitting and not rated.  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 20050512	VA* - ~2 months Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5237	10%	Lumbar Strain…	5237	10%	20060419	
Hearing Loss…	Not Unfitting	No VA Placement	
Other x 0 (Not In Scope)	Other x 8	
RATING:  10%	COMBINED RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20070226 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Back Pain.  The first record in evidence for the low back pain (LBP) condition is a primary care note dated 3 September 2002 which recorded a month history of LBP with a prior episode a year earlier.  He was seen periodically over the next few years for recurrent pain and received an L2 profile.  An magnetic resonance image on 1 June 2004 showed congenital stenosis, but no herniated disc.  He was able to deploy, but had recurrent pain after an IED (improvised explosive device) attack.  Despite treatment, including chiropractic manipulation, he was not able to meet full duty requirements and entered into the MEB process.  At the MEB examination on 16 August 2005, the CI reported chronic back pain with numbness in the arms and hands.  The examiner noted pain with provocative testing of the nerve roots and decreased flexion.  The narrative summary (NARSUM) was dated 17 November 2005, 3 months prior to separation.  The CI noted ongoing LBP aggravated by activity and prolonged sitting.  On examination, he was noted to have a normal gait and stance, to be in no acute distress, and was able to toe and heel walk.  The paraspinal muscles were tender, but the neurological examination was normal and spasm was not documented.  The range-of-motion (ROM) was reduced significantly and not congruent with the normal gait.  It was also accomplished with a goniometer and inclinometer.  

At the VA Compensation and Pension (C&P) examination performed 2 months after separation, the CI reported incapacitation for a total of 1-day the prior year.  The CI was noted to be in no acute distress.  Posture and gait were normal; no assistive device was used.  The ROM and neurological examinations were normal, but there was pain at the end of motion.  The paraspinal muscles were tender, but spasm was absent.  Provocative testing for nerve root irritation was negative.  An X-ray was normal.  The 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)	MEB ~4 Mo. Pre-Sep	VA C&P ~2 Mo. Post-Sep	
Flexion (90 Normal)	30	90	
Combined (240)	165	240	
Comment	Inclinometer and goniometric; Normal gait	Goniometric; Painful motion	
§4.71a Rating	40%	10% (4.59)	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back at 10% using the codes 5299-5237 (analogous to lumbosacral strain) and 5237, respectively.  The Board considered the evidence.  The ROM documented by the PEB supports a higher rating than 10%, but the limitation in flexion is not consistent with the pathology in evidence or the presence of a normal gait.  Also, it was obtained with an inclinometer for flexion and extension, raising the concern that this represents only lumbar motion vice thoracolumbar motion.  Accordingly, the Board assigned a higher probative value to the VA C&P examination.  This supports no higher than a 10% rating.  The Board also considered if an unfitting radiculopathy was present at separation, but noted that both the NARSUM and C&P neurological examinations were normal.  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 back condition.  

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hearing loss 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.
Hearing Loss Lower and Mid Frequencies Left Ear.  The hearing loss was not profiled, implicated in the commander’s statement, or judged to fail retention standards.  It was reviewed and considered by the Board.   There was no performance based evidence from the record that it 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 contended hearing loss 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.  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hearing loss condition, the Board unanimously recommends no change from the PEB determination 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 20140501, with attachments
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 XXXXXXXXXXXXXXXXXXXXX AR20160010223 (PD201403023)

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