RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03432
BRANCH OF SERVICE:  Army	BOARD DATE:  20150609
SEPARATION DATE:  20060803

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Ammunition Specialist) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  Her profile allowed for an alternate aerobic event to satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Symptomatic scoliosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded four other conditions all meeting retention standards (adjustment disorder with anxiety, histrionic personality disorder, subjective dyspnea on exertion and mild high frequency loss) for PEB adjudication.  The Informal PEB adjudicated chronic low back pain (LBP) secondary to repetitive strain injury associated with scoliosis as unfitting, rated 0%, with likely application 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 20060605	VA* – based on Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain & Scoliosis	5237	0%	Chronic Low Back Pain	5099-5024	NSC	STR	
Adjustment DO w/Anxiety	Not Unfitting	Adjustment Disorder w/Anxiety	9440	NSC	STR	
Personality Disorder	Not Unfitting 	No VA Placement	
Subjective Dyspnea	Not Unfitting 	Allergies	6522	NSC	STR	
		Asthma	6602	NSC	STR	
Mild Hearing Loss	Not Unfitting 	No VA Placement**	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6 	
RATING:  0%	RATING:  NSC	
*Derived from VA Rating Decision (VARD) dated 20061204 (most proximate to date of separation [DOS]).
**Bilateral Hearing Loss denied on 20090825 VARD

ANALYSIS SUMMARY:

Back Pain.  In January 2001, this CI was noted to have scoliosis on her enlistment physical examination (PE).  In May 2001, she started having LBP.  There was no specific trauma or injury associated with the onset of pain.  In 2004, while deployed overseas with her unit, her LBP symptoms increased.  She was treated with medication, physical therapy, profiling, and other conservative measures.  In spite of all treatment efforts, her back pain persisted and an MEB was initiated.  The MEB narrative summary evaluation was in May 2006.  The CI reported intermittent pain in the upper lumbar area.  The pain was worsened by running, lifting, carrying or prolonged standing.  On PE, her posture and gait were normal. She had good heel and toe walk.  Straight leg raise was negative, and there was no spasm.  Neurological exam was normal in both legs.  Range-of-motion (ROM) was measured and is summarized in the chart below.

The CI was separated from service on 3 August 2006.  After separation, she was scheduled for a VA Compensation and Pension exam on 7 November 2006.  However, she failed to appear for that examination.  Based on her failure to appear, the VA denied service-connection for her back pain condition.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~10 Mos. Pre-Sep
	MEB ~3 Mos. Pre-Sep
	
Flexion (90 Normal)	90	90	
Extension (30)	20	30	
R Lat Flexion (30)	30	30 (38)	
L Lat Flexion (30)	30 (40)	30 (39)	
R Rotation (30)	(not recorded)	30 (50)	
L Rotation (30)	(not recorded)	30 (50)	
Combined (240)	(unable to calculate)	240	
Comment	No mention of pain with motion	Normal ROM, accompanied by “a little lower back pain”	
§4.71a Rating	0%	10%*	
*10% rating IAW §4.40 (Functional loss), and §4.59 (Painful motion)

The Board reviewed the data from the back examinations described above, and directed attention to its rating recommendation based on the evidence in the record.  The May 2006 exam was just 3 months prior to the DOS, and therefore had significant probative value.  At that exam, thoracolumbar ROM was normal, and back motion was accompanied by some lower back pain.

The Board determined that the back condition was essentially non-compensable based solely on the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine.  However; IAW VASRD §4.40, and §4.59, when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional limitation due to pain.  There was no path to a rating higher than 10% for the back pain.  There was not sufficient evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  There was not sufficient evidence of a seriously disabling back condition or spinal abnormality that would justify a higher rating.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was not sufficient performance based evidence of a clinically significant neuropathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting neuropathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic.

Other PEB Conditions.  Four conditions were adjudicated by the PEB as not unfitting, and therefore not ratable.  These four conditions were: adjustment disorder with anxiety, histrionic personality disorder, subjective dyspnea on exertion, and mild hearing loss.  The Board’s main charge with respect to these conditions is to assess the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  These four conditions were thoroughly reviewed and considered by the Board.

The Board determined that none of these conditions were specifically profiled, nor were they judged to fail retention standards.  There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for the adjustment disorder with anxiety, histrionic personality disorder, subjective dyspnea on exertion, and mild hearing loss. Therefore, 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.  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 chronic LBP, the Board unanimously recommends a disability rating of 10%, coded 5299-5237, IAW VASRD §4.40 and §4.59.  In the matter of the adjustment disorder with anxiety, histrionic personality disorder, subjective dyspnea on exertion, and mild hearing loss, 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 the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic low back pain 	5299-5237	10%	
RATING	10%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140707, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160003052 (PD201403432)

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