RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03693
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090916

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “chronic back pain,” with a disability rating of 10%.

CI CONTENTION:  “Please consider all conditions.”  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 - 20090611	VARD - 20091117	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Lumbar Strain	5237	20%	20090814	
Bilateral Shoulder Pain	Not Unfitting	Bursitis, Left Shoulder	5201	10%		
		Bursitis, Right Shoulder	5201	10%		
Headaches		Headaches	8100	10%		
Gastroesophageal Reflux Disease		Pyrosis	7399-7346	0%		
Psuedofolliculitis Barbae		Psuedofolliculitis Barbae	7813	0%		
Eczema		Dyshidrotic Eczema	7806	0%		
Tinnitus		Tinnitus	6260	10%	20090821	
Anxiety and Depression		Posttraumatic Stress Disorder	9411	30%		
Palpitations		Paroxysmal Preventricular Contractions	7099-7010	10%	20090814	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic back pain condition began in August 2005 after falling during a rucksack march.  The CI deployed with his unit from April 2007 to June 2008 and was placed on profile for the last 2 months of deployment.  Following his return from deployment, he was evaluated by an orthopedic surgeon, on 30 September 2008, who indicated the evaluation would be for a Military MOS Review Board.  On examination there was numbness over the posterior thighs that did not correspond to a spinal nerve root (radiculopathy).  Reflexes were normal and there was no weakness of ankle dorsiflexion.  Straight leg raise (SLR) testing to elicit signs of radiculopathy was negative.  Lumbar spine magnetic resonance imaging, in October 2008, was unremarkable with no surgical indication.  

At a family medicine evaluation, on 14 January 2009, the CI reported low back pain had progressively worsened, with intermittent pain down both thighs.  The examiner noted orthopedics recommended a MEB, but one had not been initiated.  The physical exam noted a normal gait and posture.  There was decreased ROM with muscle spasm and SLR was negative.  Lower extremity strength, sensation, and reflexes were normal.  Lumbar spine X-ray studies in February 2009 were normal.  Despite treatment, there was insufficient improvement to allow unrestricted duty and the CI was referred for an MEB.  The MEB forwarded “chronic low back pain” for PEB adjudication.  The range-of-motion (ROM) examinations 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)	MEB/2808 ~7 Mos. Pre-Sep
	VA ~1 Mo. Pre-Sep
	
Flexion (90 Normal)	80 (78,79,79)	40	
Combined (240)	230	145	
Comments		Muscle spasm
Altered gait
No change in ROM with rep.	
§4.71a Rating	10%	20%	

At the MEB examination (recorded on DD Form 2807 and 2808), dated 19 February 2009, 7 months prior to separation, the CI reported chronic back pain with numbness in the upper legs. 
Physical exam showed no tenderness to palpation or spasm and the CI was able to heel and toe walk.  The goniometric ROM (after three repetitions) was as indicated in the chart above.  Lower extremity strength, sensation, and reflexes were normal.  At the MEB NARSUM examination, on 13 April 2009, 5 months prior to separation, the CI reported chronic low back pain.  Physical exam noted the CI was not in acute distress and had a normal gait.  The remainder of the exam was cited from the MEB DD Form 2808 exam summarized above.  

At the VA Compensation and Pension (C&P) examination on 14 August 2009, performed a month before separation, the CI reported low back pain with intermittent radiation to the right anterior thigh, aggravated by activity, and flare-ups of pain and spasm 2 to 3 times per week lasting about 5 hours.  He also reported that he had one incapacitating episode in 2007 for a few days.  He denied bowel or bladder problems.  The examiner described gait as “somewhat waddling due to jarring causing transient pains in his knees, back and feet.”  There was “moderate” spasm throughout the lumbar paraspinal muscles and “mild” tenderness.”  Back ROM was as indicated in the chart above.  Repetitive motion increased pain and spasm, but did not change the ROM.   Lower extremity strength, sensation, and reflexes were normal and straight leg raise testing was negative.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 10% coded 5299-5237 (analogizes to lumbosacral strain), citing limitation of motion.  The VA rated the chronic back condition 20% coded 5237 (lumbosacral strain), based on the VA C&P examination a month before separation, citing limitation of forward flexion.  It was noted that at the pre-separation C&P exam, the most proximate exam to the date of separation, there was muscle spasm associated with an abnormal gait present as well as flexion of 40 degrees.  The Board considered that the MEB NARSUM exam noted significantly better ROM and no muscle spasm or guarding severe enough to result in an abnormal gait, but that the family medicine evaluation, in January 2009, also noted lumbar muscle spasms with qualitative description of decreased ROM.  Although this was an inconsistent finding, the Board concluded that there was sufficient evidence to support a 20% rating.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported intermittent radiating pain and numbness of the thighs; however, radiating pain is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates),” and there was no objective evidence of a motor or sensory deficit related to the back condition on any exam in record that could have been separately functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the chronic back pain condition, coded 5237.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral shoulder pain, headaches, gastroesophageal reflux disease (GERD), pseudo- folliculitis barbae, eczema, tinnitus, anxiety and depression and palpitations 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 contended conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   All 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 at separation.  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 the any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the Board  recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the bilateral shoulder pain, headaches, GERD, pseudo-folliculitis barbae, eczema, tinnitus, anxiety and depression, and palpitations 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.  The Board 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	
Chronic Back Pain	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140722, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160011589 (PD201403693)

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 20% 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