RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE NUMBER:  PD1300080
BRANCH OF SERVICE:  Army	BOARD DATE:  20140711
Separation Date:  20011225

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Specialist/E4 (52C10/Utilities Equipment Repairer) medically separated for “chronic lower back pain (LBP) secondary to L5-S1 herniated nucleus pulposus (HNP) without neurologic abnormality or documented chronic paravertebral muscle spasms.”  Despite neurology and neurosurgery evaluations, extensive physical therapy, and medications, the CI failed to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and was referred for a Medical Evaluation Board (MEB) which forwarded “herniated disk at L5-S1” and “spina bifida occulta at S1” conditions to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated “chronic LBP secondary to L5-S1 HNP” as unfitting, rated 10% citing criteria of DoDI 1332.39.  The IPEB also adjudicated that the spina bifida occulta at S1 as not unfitting and not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Rating does not match VA Rating of 60% with 100% unemployable.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting LBP condition is addressed below; no additional conditions are within the Board’s defined DoDI 6040.44 purview.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.  

RATING COMPARISON:

Service IPEB – Dated 20011018	VA - (~2.5 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP Secondary to L5-S1 HNP	5293	10%	HNP, L5-S1	5293	20%*	20011010	
No Other Conditions in Scope	No Other Conditions	20011010	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20020110 (most proximate to date of separation )
*VARD 20030703 reflects that the rating for the HNP L5-S1 was increased to 60% retroactive to DOS. Source documents reflecting the rationale for this increase were not in evidence.

ANALYSIS SUMMARY:  

Chronic Low Back Pain Secondary to L5-S1 HNP Condition:  The CI was diagnosed with 1 month history of LBP in May 2000 and found to have LBP and tenderness to palpation.  He sustained a flare-up in October 2000 while he was doing sit-ups and felt a pop in his lower back.  He was seen by physical medicine for sharp LBP with movement and pain that radiated down to the posterior right leg, and was given Toradol, a non-steroidal anti-inflammatory drug (NSAID), injection.  The lumbar spine X-rays showed spina bifida occulta at S1.  A magnetic resonance imaging (MRI) demonstrated L5-S1 moderate sized focal central protrusion.  A neurosurgery consult indicated that there was chronic LBP with radiation to the right lower extremity and posterior knee, along with an inability to bear weight on the right side because of the pain which caused him to limp.  The neurosurgeon discussed various treatment options; however the CI refused any invasive procedures at that time and stated he would follow-up with the pain clinic and his primary care physician.  The CI was given a permanent L3 profile for LBP and the commander’s statement noted that the CI’s condition interfered with his field duties and prevented him from performing his daily MOS duties.  The MEB narrative summary (NARSUM) exam approximately 3 months prior to separation indicated that the CI had chronic LBP with worsening throughout the day despite daily medication; repetitive sitting and standing along with lifting greater than 30 pounds increased the pain.  The examiner characterized the pain as moderate and constant.  The MEB NARSUM physical exam findings are summarized in the chart below.  The VA Compensation and Pension (C&P) examination approximately 2 months after separation documented that the CI needed a NSAID and a muscle relaxant three times a day for pain control.  However, the pain remained unrelenting and the CI occasionally had radicular pain and tingling into the right leg and knee.  The VA C&P physical exam findings are summarized in the following chart:

Lumbar ROM* (Degrees)	Neurosurg.~8 Mos. Pre Sep	NARSUM ~ 3 Mos. Pre-Sep	VA C&P ~ 2.5 Mos. Pre-Sep	
Flexion (60 Normal)		Full ROM with pain	30	
*Not Thoracolumbar ROM	Tenderness along paraspinal muscles L2-4 bilaterally; Normal reflexes & strength; Sensory decrease in right leg/foot	Normal gait; slight tenderness L2-S1, Neg Straight leg raise; Normal reflexes & strength	Abnormal gait; Pos painful motion, muscle spasm & paraspinal tenderness bilaterally; Pos straight leg raise & Deluca criteria; Slight decreased strength right leg; Normal sensory	
5292	20%	10%	20%	
5293	20%	20% (MEB 10%)	20% (VA 20%)	
5295	20%	10%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic LBP secondary to L5-S1 HNP condition by applying VASRD code 5293, intervertebral disc syndrome, and rated it 10% (mild) IAW DoDI 1332.39.  The VA also applied the 5293 code to the HNP condition and rated it 20% (moderate).  The available evidence documents that the CI experienced right-sided radicular symptoms with muscle spasm on the C&P exam and a positive MRI for HNP.  Although there is some discrepancy between the 2 exams within 3 months of separation, they both agree that painful motion was present.  The C&P exam was the exam most proximate to separation and documented muscle spasm with a slight decrease in right leg strength and symptoms of nerve root irritation.  Board deliberations focused on considering the 20%, moderate rating verses the 10% mild rating.  The majority of the service treatment record along with the NARSUM was judged to be most consistent with the moderate rating criteria.  Additionally, the evidence contained the following statements consistent with moderate impairment:  

“He reports the pain is unrelenting and he occasionally has radicular pain and tingling into the right leg to the knee. The examiner characterized the pain as moderate and constant in accordance with the American Medical Association (AMA) pain grade.”

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic LBP secondary to L5-S1 HNP condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations 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.  As discussed above, PEB reliance on DoDI 1332.39 for rating the chronic LBP secondary to L5-S1 HNP condition was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the chronic LBP secondary to L5-S1 HNP condition, the Board unanimously recommends a disability rating of 20%, coded 5293 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain Secondary to L5-S1 HNP	5293	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130212, 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 XXXXXXXXXXXXXXXXXX, AR20140018665 (PD201300080)

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,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization 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:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA