RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03515
BRANCH OF SERVICE:  Army	BOARD DATE:  20150526
SEPARATION DATE:  20050630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (OH-58D Armament, Electrical, and Avionics Systems Repairer) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “spinal stenosis of the lumbar spine” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (sciatica and obesity).  The Informal PEB adjudicated the back pain as unfitting, rated 10%, citing 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 20050606	VA* - based on Service Treatment Records (STR)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Due to Lumbar Spinal Stenosis, Without Neurologic Abnormality…	5238	10%	Lumbar Pain with Right Sciatica	5299-5237	NSC	STR	
Sciatica	Not Unfitting					
Obesity	Not Unfitting 	No VA Placement	
Other x 0 (Not In Scope)	Other x 9	
RATING:  10%	RATING: NONE	
*Derived from VA Rating Decision (VARD) dated 20060302 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The CI first reported low back pain (LBP) in September 2003 after running as he heard a “pop” in his back.  Initial plain X-rays were normal.  His back pain continued and he developed right lower extremity pain and numbness.  A magnetic resonance imaging of 26 August 2004 revealed multi-level degenerative disc disease with bulging discs within the lumbosacral spine.  A subsequent myelogram revealed prior radiographic findings associated with mild to moderate spinal stenosis.  Orthopedic evaluation did recommend surgical spinal decompression, but only after the achievement of significant weight loss.  The recommended weight loss was never achieved and the CI continued with LBP and was referred to a MEB.

The MEB narrative summary examination which was dictated on 18 May 2005 referenced the MEB physical examination performed on 19 January 2005 (5 months prior to separation) noted full, but painful range-of-motion (ROM) of the spine.  Additionally, the dictated report included a comment that the CI’s severe obesity has complicated and hindered the treatment of his spinal condition.  The diagnoses were listed as spinal stenosis of the lumbar spine, sciatica, and obesity.  His permanent profile of December 2004 listed spinal stenosis and sciatica as the disabling conditions and the commander’s statement noted his inability to perform MOS duties were due to his physical impairments and profiled restrictions.  A VA examination was not available for review, but a VARD (proximate to separation) indicated that the lumbar spine condition with right-sided sciatica was “Not Service Connected” due to the absence of permanent residuals or chronic disability.  It was additionally noted that the CI also “failed to report” for a previously scheduled C&P examination.  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)	H&P ~5 Mo. Pre-Sep
(20050119) 	PT ~1 Mo. Pre-Sep
(20050603) 	
Flexion (90 Normal)	FROM 	55	
Extension (30)		10	
R Lat Flexion (30)		25	
L Lat Flexion (30)		30	
R Rotation (30)		30 	
L Rotation (30)		30 	
Combined (240)	240	180	
Comment	painful motion	-	
§4.71a Rating	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition slightly differently, they both utilized similar primary codes of 5238 (spinal stenosis) and 5237 (lumbosacral strain) respectively; with the PEB citing pain and tenderness and the VA as no permanent disability.  Board members first acknowledged that the ROM values reported by the PT examiner, (a month prior to separation) were significantly worse than those reported in the 5 months MEB prior to separation examination having significant implications regarding the Board's final rating recommendation.  The Board thus carefully deliberated its probative value assignment to these differing evaluations, and carefully reviewed the Service file for corroborating evidence in the 12-month period prior to separation.  Although the PT examination was closest to service separation, there existed no recorded evidence of recurrent injury or other development in explanation of the more marked ROM impairment.  Board members considered and extensively deliberated between the two discordant examinations and a majority consensus placed greater probative value to the MEB examination, based upon similar physical findings during the nine months prior to separation.  These prior examinations reflected normal gait patterns as well as the ability to sit normally.  Such persistent abilities coupled with the absence of interim injury or disease progression between the two examinations lent significant credibility that the MEB examination more closely (in regards to medical plausibility) indicated the CI’s condition near the time of Service separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority agreed that a disability rating of 10% for the chronic LBP condition was appropriately recommended in this case.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that sciatica and obesity 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.  Although sciatica was listed on the permanent profile, neither it nor the condition of obesity was judged not to fail retention standards.  Both conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that either of these conditions separately interfered with his 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 either 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.  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 lumbar spine condition and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends no change in the PEB adjudication.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the contended sciatica and obesity 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 20140721, w/atchs
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 XXXXXXXXXXXXXXXXXXXX, AR20160003192  (PD201403515)

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 ( ) OVA