RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03392
BRANCH OF SERVICE: Army 	SEPARATION DATE:  20030117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Tank Turret Mechanic) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic mechanical thoracic and lumbar back pain [LBP] w/evidence of thoracolumbar degenerative joint disease,” conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic mechanical thoracic and lumbar back pain” as unfitting, rated 10%, citing application of DoDI 1332.39 and AR 635-40.  The PEB did not address the three other conditions submitted by the MEB.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI contended for all of his conditions. The applicant’s 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 Veterans Affairs Schedule for Rating Disabilities (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 20021205	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic…Back Pain	5299-5295	10%	DDD, Thoracolumbar Spine	5242	0%*	STR	
Facial Acne Vulgaris	Not Rated	No VA Entry	
SAR	Not Rated	No VA Entry	
Tobacco abuse, ongoing	Not Rated	No VA Entry	
Other MEB/PEB Conditions x 2 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20070717 (most proximate to date of separation [DOS]).  *VARD of 20080123 awarded 20% for back, 5242, increasing combined to 30%.

ANALYSIS SUMMARY:  The PEB did not address the three additional conditions (facial acne vulgaris, seasonal allergic rhinitis [SAR], and tobacco abuse, ongoing) submitted by the MEB, implying that they were not unfitting.  The MEB did note that they existed prior to service (EPTS) without permanent service aggravation.  No specific comment was made noting if they met retention standards or not.  The Board considered if these were unfitting at separation.  Also, the CI was separated while the VASRD interim spine rules were in effect between 23 September 2002 and 26 September 2003.  These rules were used for adjudication.

Chronic Mechanical Thoracic and LBP.  The first record in evidence for the back pain condition was dated 22 October 2001 when the CI reported back pain after squatting down to open a tank hatch the previous day.  He also reported a history of back pain which prevented walking at times.  He was treated conservatively with medications and duty limitations.  An X-ray of the lumbosacral spine was normal on 14 January 2002.  Thoracic spine X-rays on 15 March 2002 were also normal.  The CI was seen in physical therapy (PT) that same day and noted to have full active range-of-motion (ROM).  The neurological examination was also normal.  In PT on 9 April 2002, the examination was similar but the ROM was painful.  Magnetic resonance imaging (MRI) of the lumbar and thoracic spine on 13 June 2002 showed a mild bulge at L5-S1 as well as moderate bulges at T2-3, T3-4, and T6-7.  Herniation was present at T7-8 on the right.  He was evaluated in neurosurgery on 5 September 2002 and reported pain shooting down both lower extremities.  He denied numbness or incontinence.  On examination, he was tender over the thoracic spine at the T10-T11 level, but spasm and list (abnormal posture) were not present.  The ROM and neurological examinations were normal.  Electro-diagnostic studies on 1 October 2002 showed evidence for a bilateral L5 radiculopathy, a finding which surprised the neurosurgeon as the MRI did not show nerve root impingement.  At the MEB examination on 8 October 2002, the CI reported that he had injured his back 6 years previously.  The MEB physical examiner documented mild tenderness to palpation of the back, but a normal neurological examination and negative provocative maneuvers for nerve root irritation.  He was noted to have acne over his back.  The narrative summary (NARSUM) was dated 15 October 2002, 3 months prior to separation.  The CI reported that his pain began in 1996 when another player fell on him while playing basketball.  Elsewhere, he reported that he fell against a desk in 1996.  His pain persisted despite conservative management.  Incapacitation was not documented.  On examination, he had tenderness over the thoracic and lower lumbar spine, but “good back ROM”, no spasm or gait abnormalities, and no neurological focal abnormalities.  Mild facial acne and nasal congestion were also noted.  It was noted that surgical intervention was not indicated.  The CI did not submit a disability claim to the VA until over 4 years after separation.  No VA Compensation and Pension examination was accomplished until 31 December 2007, which is outside the Board’s probative 12-month window.

The Board directed attention to its rating recommendation based on the above evidence.  The VA did not rate the back until 2007 and assigned a 0% rating as the CI did not report for his initial examination.  The PEB rated the back at 10%, coded analogously as 5299-5295 (lumbo-sacral strain).  The Board noted that the CI had a normal ROM on multiple examinations and pain on one; the latter supports a 10% rating.  The Board found no route to a rating higher than the 10% adjudicated by the PEB for the back condition.  It then considered if an unfitting radiculopathy was present at separation.  Although the CI had a bilateral L5 radiculopathy on electro-diagnostic studies, the neurological examination was normal at multiple office visits by different examiners.  The evidence does not support the presence of an unfitting radiculopathy at separation.  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 back condition

Contended PEB Conditions.  The MEB also listed acne, SAR, and tobacco abuse as EPTS conditions without comment on medical acceptability.  The Board’s main charge is to assess the fairness of the PEB’s implied determination that these 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.  None of these conditions were profiled or implicated in the commander’s statement.  No comment was made on whether they failed retention standards.  All were reviewed and considered by the Board.  There was no performance-based evidence from the record that any significantly interfered with satisfactory duty performance.  In addition, the Board noted that the tobacco abuse is not a physical disability IAW DoDI 1332.38E5.1.2.9.1.  It is, therefore, not ratable.  After due deliberation, and 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 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.  As discussed above, PEB reliance on DoDI 1332.39 and AR 635-40 for rating the thoracic and lumbar back pain was operant in this case and the condition was adjudicated independently of that instruction and regulation by this Board.  In the matter of the chronic mechanical thoracic and LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended facial acne vulgaris, SAR, and tobacco abuse conditions, the Board unanimously agrees that it cannot recommend any additional disability rating.  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 20140812, 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 XXXXXXXXXX, AR20160004087 (PD201403392)

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