RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-00181
BRANCH OF SERVICE:  Army	BOARD DATE:  20150701
SEPARATION DATE:  20040610

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Ammunition Specialist) medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for an Medical Evaluation Board (MEB).  Chronic low back pain, probable discogenic and musculoskeletal in origin was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic low back pain as unfitting, rated 10% with likely application of AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  She was given a higher rating for her condition by the VA.  Her complete submission is at Exhibit A.

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 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 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: 

IPEB – Dated 20040317	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Degenerative Disc Disease Multilevel Lumbar Spine	5237	40%	20040521	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 8	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20040623 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  

Chronic Low Back.  The MEB narrative summary (NARSUM) noted that the CI had the onset of chronic low back pain in March 2003 (13 months prior to separation) after lifting heavy objects on duty.  The pain was persistent after that without any improvements despite extensive physical therapy, chiropractic manipulation and physical medicine evaluations.  She also had intermittent numbness and tingling in the low back region radiating into her upper legs, right greater than left, and occasionally extending to her toes.  These episodes lasted for several minutes and occurred at a rate of approximately one per month.  She was unable to continue performing the requirements of her MOS, and was referred for MEB.  Nuclear magnetic imaging (MRI) in August 2003 showed degenerative disc desiccation (decreased water content indicative of degenerative change) of L3-4 and mild facet arthrosis (joint arthritis) at L4-5 and L5-S1, with no canal or foraminal stenosis (which would be suggestive of pressure on the nerve).  A DD Form 2808, Report of Medical Examination, was accomplished on 9 December 2003, 7 months prior to separation.  The CI grimaced with palpation to the lower paraspinal, flank, and hip areas bilaterally; had no muscle spasm; and had normal reflexes.  Low back flexion was reported to be 44 degrees (with goniometer), and extension was 19 degrees.  At a physical therapy evaluation 2 days later, flexion was 40 degrees, extension was 17 degrees, and both were limited by pain.  At a neurological evaluation a week later (16 December 2003), the CI complained of intermittent numbness of her right toes.  On examination she had normal (5/5) strength of the lower extremities and intact sensation.  

At the VA Compensation and Pension (C&P) exam on 21 May 2004 (a month prior to separation), the CI reported “chronic daily spasms and tightness” since her injury.  The examiner stated, “Initially she was having radicular symptoms going down into both lower extremities, however, this has resolved.  She has not had recurrence of radicular symptoms since January of year 2004.  …Patient has not had recent incapacitating episodes in the last year.”  On examination, there was marked tenderness to palpation in the paraspinal musculature of the lumbar area, painful motion, and muscular spasms; but no abnormal curvature.  Forward flexion was 30 degrees and combined range-of-motion (ROM) was 80 degrees, but the VA examiner specified that measurements were obtained without hip involvement.  Motor and sensory exams were normal and there was evidence of sciatica.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 10%, analogously coded 5237 (lumbosacral strain), citing ROM moderately restricted by pain.  The VA rated the condition at 40%, also coded 5237, citing markedly limited forward flexion and documented lumbar degenerative disc disease on MRI.  The VA C&P examination was the most complete and was the closest to the date of separation, but it was not consistent with earlier exams.  The Board noted that the thoracolumbar ROM measurements in this exam were obtained “without hip involvement,” which would be contrary to the guidance of VASRD §4.71a (Plate V, Range of Motion of Cervical and Thoracolumbar Spine) indicates that hip involvement is included in the ROM measurements for the thoracolumbar spine.  This is also consistent with common practice and the anatomic reality.  Although none of the other prior to separation examinations were complete, they consistently supported a rating of 20% or less based on forward flexion.  Based on this consistency, and the probative value concerns raised by the failure of the VA ROM measurements to accommodate hip involvement, members agreed that the single measurement of flexion to 30 degrees in the C&P examination was insufficient to support a recommendation for a higher rating.  Board members agreed that the earlier Service examinations, and not the VA C&P exam, best characterized the CI’s condition for rating purposes 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 20% for the chronic low back condition.

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.  As discussed above, PEB reliance on AR 40-501 for rating the chronic low back condition was likely operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the chronic low back condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 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 her prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5299-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130419, 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 XXXXXXXXXXXXXXXXXXXX, AR20150012414 (PD201300181)

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