RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03394
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20031022

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Radiology Specialist, medically separated for “long standing low back pain secondary to degenerative disc disease,” with a disability rating of 10%.

CI CONTENTION:  The CI requests that all conditions be considered.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based on 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:  

SERVICE PEB - 20030417	VARD - 20031112	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5295	10%	L5-S1 Disc Protrusion	5243	0%	20030924	
Myofascial Neck Pain	Not Unfitting 	Myofascial Neck Pain	5237	0%		
Right Elbow Epicondylitis		Right Elbow Epicondylitis	5024	0%		
Migraine Headaches		Migraine Headaches	8100	0%		
Bunions		Right Bunion	5280	0%		
		Left Bunion	Deferred		
Chondromalacia Patella		R Knee S/P Lateral Release	5260	0%		
		L Knee S/P Lateral Release	5260	0%		
Gastroesophageal Reflux		GERD	7399-7346	0%		
Recurrent Eczema		Eczema	7806	0%		
OSA, Not Requiring CPAP		Obstructive Sleep Apnea…	6847	0%		
Vision Defect		No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:

Low Back Pain (LBP).  According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain LBP began in 1991 and was worsened by motor vehicle accidents in 1993 and 1999.  Orthopedic evaluation revealed a diagnosis of chronic mechanical LBP.  There was no surgical indication, so the CI was treated non-operatively.  In January 2003, magnetic resonance imaging showed a small disc protrusion in the lower back.  Despite all treatment efforts, the back pain persisted and she underwent a MEB.  The MEB characterized the back condition as: Recurrent low back pain, with degenerative disc disease (DDD).  The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its recommendation, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	MEB* ~6 Mos. Pre-Sep	Ortho* ~4 Mos. Pre-Sep	VA ~1 Mo. Pre-Sep	
Flexion (90 Normal)	90	85	95	
Combined (240)	240	(unable to calculate)	240	
Comments	Spasm, Normal Gait	Spasm, Normal Gait	Normal Gait	
             
At the MEB examination (recorded on DD Form 2807 and 2808) dated 29 April 2003 (6 months before separation) the CI reported difficulty with pushing, pulling, and lifting during flare-ups of back pain.  Neurological exam was normal.  Provocative testing for nerve root irritation was negative.  The MEB orthopedic visit on 11 June 2003, 4 months prior to separation, recorded complaints of increased back pain with strenuous activity or lifting more than 30-40 pounds.  The CI denied radiating numbness, tingling or any radicular symptoms.  On examination, neurological findings were normal, as was testing for nerve root impingement. 

At the 24 September 2003 VA Compensation and Pension (C&P) examination, performed a month prior to separation, the CI reported back pain aggravated by sitting in place for 30-40 minutes or any kind of stress or strain.  The examiner noted there was “no typical evidence of any radiation down the lower extremities.”  Physical exam showed “myofascial stiffness, but no radiculitis symptoms.”  Neurological exam was normal, as was provocative testing for nerve root irritation. 

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the low back pain 10%, coded 5299-5295 (analogous to lumbosacral strain under an old VASRD version), citing “near full range of motion.”  The VA rated the condition 0%, coded 5243 (intervertebral disc syndrome), based on the VA C&P examination a month before separation, citing VASRD rating criteria.  The Board noted that the CI was separated just after a significant change in VASRD codes and criteria for the spine. The older codes and criteria were applied to rating by the PEB, and the new codes and criteria were in effect for the VA’s ratings. The Board’s recommendation, IAW DoDI 6040.44, must be premised on the VASRD in effect at separation. The current VASRD rating criteria were in effect at the date of separation (DOS).

Although there was insufficient limitation of motion to support a 10% rating, the Board agreed a 10% rating was justified for the presence of tenderness as recorded on the MEB exam.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula, or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a 10% disability rating for the unfitting LBP condition.  The PEB used VASRD code 5299-5295.  This code was obsolete at the time of the CI’s separation (October 2003).  Therefore, the Board recommended changing the VASRD code to 5237 (lumbosacral strain).
Contended PEB Conditions:  Neck Pain, Right Elbow Epicondylitis, Migraines, Bunions, Chondromalacia Patella, Gastroesophageal Reflux Disease (GERD), Eczema, Obstructive Sleep Apnea (OSA), and Vision Defect.  The Board’s main charge is to assess the fairness of the 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.  Other than the neck and knee pain, none of the other contended PEB conditions were profiled or implicated in the commander’s statement.  There was no evidence of treatment for knee pain in the year prior to separation and no evidence of treatment for neck pain was found for 3 years prior to separation.  The knee pain was listed on a permanent L3 profile in January 2003, as well as the final permanent profile in July that same year, but no evidence could be found for treatment of knee pain in the year prior to separation. Knee examinations proximate to separation were all normal (other than evidence of previous surgery, which is normal and expected). The neck pain was permanently profiled at U2 (slightly limited mobility of joints, muscular weakness, or other…defects that do not prevent hand–to–hand fighting and do not disqualify for prolonged effort), but no evidence of treatment for this condition was available for over 3 years prior to separation.  All of the nine contended conditions were judged to not fail retention standards.   All contended conditions were reviewed and considered by the Board.  There was no performance-based evidence from the record that any of these contended conditions significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended. 

BOARD FINDINGS:  In the matter of the low back pain, the Board unanimously recommends a rating of 10%, coded 5237, IAW the VASRD §4.71a which was in effect at separation.  In the matter of the contended neck pain, right elbow epicondylitis, migraines, bunions, chondromalacia patella, GERD, eczema, OSA, and vision defect, 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.  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Long-standing Low Back Pain, secondary to DDD	5237	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140523, 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, AR20160011472 (PD201403394)

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 10% 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