PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03293
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150710
SEPARATION DATE:  20040519

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Combat Medic) medically separated for a chronic low back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “lumbar spine: chronic low back pain (LBP)” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (high frequency hearing loss and plantar warts) for PEB adjudication.  The Informal PEB adjudicated “chronic LBP” 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.” 

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 20040330	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Chronic Lumbosacral Strain	5237	10%	20040826	
High Frequency Hearing Loss	Not Unfitting	Hearing Loss	6100	Not Service Connected	
Plantar Warts	Not Unfitting	Plantar Warts	7819	Not Service Connected	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20041206 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:    

Chronic Low Back Condition.  The service treatment record (STR) noted an intermittent, but long-standing history of non-traumatic indirect LBP which occurred throughout the CI’s military career.  His initial clinical encounter for this condition was in March 1997.  Intermittent conservative therapy remained his mainstay of treatment as he continued to perform full duties, including multiple deployments.  Secondary to increasing painful symptoms with paresthesia into his lower extremities, he was returned home from deployment for possible surgical evaluation in October 2003.  Radiology work-up revealed multi-level disc bulging of the lumbosacral spine.  In a clinical encounter, dated 12 February 2004 (3 months pre-separation), the CI denied radiculopathy into bilateral lower extremities.  Despite continued conservative treatment with PT, his symptoms remained and he was referred to an MEB.  

At the MEB narrative summary (NARSUM), dated 17 March 2004, (2 months prior to separation), the CI endorsed constant LBP which was aggravated by walking greater than 40 minutes, standing more than 15 minutes, repeated bending, heavy lifting, or with any impact activities.  His physical examination (PE) (performed a month prior to the NARSUM) and specific range-of-motion (ROM) measurements (performed a day prior to the NARSUM), both revealed decreased and painful motion of the lumbosacral spine.  The NARSUM examiner listed the diagnosis as chronic LBP, unresponsive to conservative treatment and necessitating significant limitation of physical activity.  The commander’s statement confirmed that the CI’s inability to serve in his MOS was due to his physical limitations.  

At the VA Compensation and Pension (C&P) examination (26 August 2004; 3 months post-separation), the CI reported non-incapacitating painful low back flare-ups occurring once or twice weekly with a duration of 2-8 hours.  The flare-ups did not interfere with his activities of daily living.  “He can comfortably walk 2-4 miles and run 1 mile.”  The CI additionally endorsed getting bilateral numbness in his inner calves and feet.  His VA physical exam (PE) was completely normal with full lumbosacral ROM.  The VA diagnosis remained chronic lumbosacral strain.  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)	MEB ~2 Mo. Pre-Sep
(20040316) 	VA C&P ~3 Mo. Post-Sep
(20040826) 	
Flexion (90 Normal)	(75) 85/70/62	90	
Extension (30)	(15) 20/12/16	30	
R Lat Flexion (30)	(20) 22/18/22	30	
L Lat Flexion (30)	(20) 23/16/22	30	
R Rotation (30)	(30) 30/25/30	30	
L Rotation (30)	(30) 30/30/30	30	
Combined (240)	190	240	
Comment	painful motion 	-	
§4.71a Rating	10%	0% (VA = 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized primary codes of 5237 (lumbosacral strain) citing painful motion by the PEB and presumably the same by the VA.  Board members agreed that painful motion was adequately described at 2 months prior to separation as to justify the PEB’s 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board agreed that a disability rating of 10% for the chronic LBP condition was appropriately recommended in this case.  The Board additionally considered if the subjective bilateral lower extremity radiculopathy symptoms warranted additional disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  Any pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that any radiculopathy symptoms/condition could not be recommended for additional disability rating.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the high frequency hearing loss and plantar wart 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.  Neither of these conditions was permanently profiled or implicated in the commander’s statement and was not judged to fail retention standards.  Both conditions were reviewed and reconsidered by the Board.   There was no performance based evidence from the record that either 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 fitness determination for the hearing loss or plantar wart 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 high frequency hearing loss and plantar wart conditions, 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 20140708, 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

06 JUL 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXX, AR20160003502 (PD201403293)

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