RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03617
BRANCH OF SERVICE:  Army	BOARD DATE:  20150624
SEPARATION DATE:  20051025

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Patriot Launching Station Enhanced Operator/Maintainer) medically separated for low back pain (LBP).  The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  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).  “Low back pain (LBP)” and “lumbosacral sprain injury” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified forwarded the condition as existed prior to service and not permanently aggravated by service.  The MEB also identified and forwarded three other conditions (juvenile disc disorder [EPTS without permanent service aggravation], stress reaction of distal tibiae & shin splints, and right ring finger distal interphalangeal [DIP] fusion) for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain” 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 for 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 20050830	VA* - (4 Days. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbosacral Sprain, Disc Height Loss, Schmorl’s Nodes…	5010-5243	10%	20051021	
Juvenile Disc Disorder	EPTS/Not PSA					
Stress Reaction of Distal Tibiae & Shin Splints	Not Unfitting	Stress Fractures…Left Distal Tibia	5299-5262	10%	20051021	
		Stress Fractures…Right Distal Tibia	5299-5262	10%	20051021	
		Bilateral Shin Splints	5099-5020	NSC	20051021	
Right Ring Finger DIP Fusion	Not Unfitting	Residuals of Fracture…	5299-5230	0%	20051021	
		Residuals of Scar, R Ring Finger	7804	10%	20051021	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 4 	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20051115 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  The CI was evaluated in orthopedics on 10 May 2005 and reported a history of progressive LBP since September 2004 when someone fell onto him.  He now also noted abnormal sensations (paresthesia) in both thighs.  On examination, he had full active range-of-motion (ROM), negative provocative testing for nerve root irritation, and a normal neurological evaluation.  X-rays were normal.  A magnetic resonance imaging (MRI) on 24 May 2005 was significant for multi-level Schmorls nodes (a congenital abnormality of the spine).  He was again seen in orthopedics on 31 May 2005 and noted to have some spasm.  The ROM was reduced, but remained within normal limits.  An occult tear of the disc at L4-5 was suspected.  Repeat X-rays that day with flexion and extension views were normal, implying at least fair ROM to accomplish the study.  On 1 June 2005, the CI took a record physical fitness test with an overall score of 224 and a score of 71 for sit-ups.  A bone scan on 3 June 2005 was normal for the spine (no uptake).  He was again seen in orthopedics on 21 June 2005 and reported that the LBP began in November when someone fell on him (previously, he stated September).  He was again noted to have full active ROM and a normal neurological examination.  In orthopedics on 19 July 2005, he had mild lumbar spasm and a reduction in ROM with flexion to his mid-thighs.  The neurological examination remained normal.  The narrative summary (NARSUM) was dated on 20 July 2005 where the CI reported progressive LBP since the prior November which was aggravated by activity or prolonged sitting or standing.  He denied a previous history of LBP and participated in high school sports.  On examination, he moved well in the examination room.  The paraspinal muscles were tender and mild spasm was present.  The ROM was noted to be reduced.  The actual limit of flexion was not recorded, but it was noted that the CI had a ratcheting motion if he bent past the point of discomfort (mid to distal thigh).  He guarded his movements.  The neurological examination was normal.  Formal ROM testing was accomplished in physical therapy on 26 July 2005 and showed a significant reduction in flexion at 20 degrees with some loss of extension and rotation, but side flexion values that significantly exceeded VA normal values.  At the VA Compensation and Pension (C&P) examination performed on 21 October 2005, 4 days prior to separation, the CI reported that he had the onset of LBP in 2004 when another soldier fell onto him.  He was in excruciating pain and unable to move.  He also reported that he was treated with medications and several months of physical therapy prior to being referred to orthopedics at his insistence.  This history is not consistent with the remainder of the contemporaneous records in evidence which indicate that the initial evaluation was in May 2005.  On examination, he walked without any supportive device but reported that he could not walk briskly.  His gait showed a slight abnormality from pain (antalgic gait).  His ROM was reduced and the functional flexion was estimated to be 65 degrees, 10 less than the actual 75 degrees measured.  Motion was painful.  The spinal curvature was normal.  The examiner did not document spasm, guarding, or incapacitation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition at 10%, coded 5237 (lumbosacral strain) and 5010-5243 (traumatic arthritis and degenerative disc disease), respectively.  The PEB and VA both combined the MEB conditions (LBP, lumbosacral sprain, and juvenile disc disorder) into one condition for rating.  The Board concurred with this approach as it did not find the separate contributions to the disability severable and also noted that the rating criteria are based on the total impairment.  It then considered the probative value of the examinations.  Multiple ROM evaluations in orthopedics leading up to the MEB examination were normal.  There was no indication of an additional aggravation to account for the reduced ROM found on the NARSUM and physical therapy ROM measurements.  Spasm was recorded, but was noted to be mild.  The NARSUM examiner noted that the CI “moved well” despite the limitation in flexion observed on testing.  The VA C&P examination is the most proximate to separation, is consistent with the majority of the orthopedic ROM values, and is also consistent with the pathology in evidence on bone scan, X-ray, and MRI.  It is therefore assigned the highest probative value for rating purposes and supports a 10% rating.  The Board also considered if an unfitting radiculopathy was present at separation, but noted that the neurological examination was consistently normal.  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 adjudication for the back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the stress reaction of the distal tibiae and shin splint condition and the right ring finger DIP fusion condition 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.  The stress reaction condition was profiled on one form and not on another, both dated 5 July 2005.  However, the MEB noted that it was not a service aggravated condition.  It was an incidental finding on a bone scan.  No clinical visits for this condition are in evidence.  The DIP fusion was not profiled at the time of separation and was found to meet retention standards by the MEB.  It was not implicated in the commander’s statement as impairing duty at the time of separation.  Both were reviewed and considered by the Board.  There was no performance based evidence from the record that either condition significantly interfered with satisfactory duty performance at the time of separation.  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 fitness determination for either condition 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 chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended stress reaction of (the) distal tibiae and shin splints and right ring finger DIP fusion 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 20140729, 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 XXXXXXXXXXXXXXXXXXXXX AR20160003516 (PD201403617)

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.

CF:
( ) DoD PDBR
( ) DVA