RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300698
BRANCH OF SERVICE:  Army	BOARD DATE:  20140213
Separation Date:  20091010

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31B/Military Police) medically separated for lumbosacral strain.  In spite of duty restriction, aggressive physical therapy (PT) and epidural steroid injections (ESIs) the condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbosacral strain condition, characterized as “medically unacceptable” from MEB was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (see rating chart below) for PEB adjudication.  The Informal PEB adjudicated lumbosacral strain as unfitting rated 10% with specified application of the VA 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:  The CI elaborated no specific contention in his application.

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 lumbosacral strain condition is addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 20090729	VA - (5 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5299-5237	10%	Lumbar Spine Degenerative Disc Disease (DDD), Scoliosis and Strain	5242	20%	20090514	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea, Status Post Uvulopalatoplasty	6847	50%	20090514	
Adjustment Disorder	Not Unfitting	NSC	
No Additional MEB/PEB Entries	Other x1	20090514	
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20091028 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Lumbosacral Strain Condition.  While deployed in April 2007, the CI developed low back pain (LBP) without a specific injury identified.  He was evaluated in September 2007 for sharp LBP with numbness and tingling that radiated down his left leg to the left foot with pain rated at 8 out of 10 with 10 being the worst.  The only physical exam finding was tenderness to palpation of the left lumbar paraspinal region.  The examiner diagnosed lumbago and the CI was referred to orthopedics.  The CI was then referred to PT who noted an antalgic gait with slow guarded motions.  A lumbar spine X-ray showed mild narrowing of the posterior aspect of the L5-S1 disc space and a mild scoliosis.  Throughout 2008, the CI was seen in PT for a variety of treatment modalities to resolve the LBP.  A lumbar spine magnetic resonance imaging showed mild multilevel DDD.  The CI was evaluated in a pain clinic because PT was ineffective in controlling his pain.  The pain specialist advised a series of three ESIs.  The CI underwent two ESIs without pain resolution.  The DD Form 2808, Report of Medical Examination, contained an addendum in which the examiner documented that the CI’s description of the pain was 7 out of 10 with almost any type of physical activity, especially when bending over, which did not correlate well with the clinical examination.  The commander’s statement noted that the CI’s profile interfered with performing his MOS duties.  The VA Compensation and Pension (C&P) exam accomplished 5 months prior to separation indicated that the CI had constant crushing, sharp achy localized pain with physical activity, at level 8 with 10 being the worst.  The examiner diagnosed lower back strain, scoliosis and noted objective findings of tenderness with decrease of range-of-motion (ROM) in lower back and scoliosis by X-ray.  The VA C&P exam findings are summarized in the chart below.  The MEB narrative summary (NARSUM) exam accomplished approximately 4 months prior to separation documented that the CI always had some degree of dull, achy LBP which averaged 7 of 10 in intensity.  The CI reported that with exercise or prolonged standing/walking, the pain increased to 9 of 10.  He also stated that severe pain occurred only once every month but would last several days.  The examiner noted that on physical exam that CI demonstrated mild tenderness over the lower lumbar spinous process and that there was no associated pain with changes in ROM, nor was there any associated pain with fatigue, weakness, lack of endurance, instability or incoordination.  The examiner opined that the prognosis was poor for continued military service and the symptoms would likely persist in the near future given the chronicity of his condition and would only improve if he was removed from the stress of the military.  The physical exam findings are summarized in the chart below.  The ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below:

Thoracolumbar ROM (Degrees)	MEB NARSUM ~4.5 Mos. Pre-Sep	VA C&P ~5 Mos. Pre-Sep	
Flexion (90 Normal)	20	40	
Combined (240)	185	140	
Comment	Pos. tenderness to palpation & painful motion; No muscle spasm; Normal motor/sensory/reflexes; Normal gait; Neg. straight leg raise bilat.;+Waddell’s mild overreaction with ROM; able to bend farther when dressing; able to perform a sit up	Pos. painful motion; Normal gait; Function additionally limited by pain after repetitive use; Normal motor/sensory/reflexes; Neg. straight leg raise bilat.; No muscle spasm	

Also noted in evidence was a VA PT exam dated 13 months after separation that documented “Trunk ROM is limited 50% flexion, lateral flexion left and 25% rotation left.  Pain reported with flexion more than extension (today), lateral flexion left more than right, rotation left more than right.  Mild hamstring tightness noted bilaterally.”  The Board noted that 50% of thoracolumbar flexion more closely approximates the C&P’s 40 degree ROM compared to the 20 degree ROM documented in the NARSUM.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied the analogous VASRD code of 5299-5237, lumbosacral strain, and rated it at 10% based on a combined ROM of 184 degrees.  The VA coded the lumbar spine DDD, scoliosis and strain condition as 5242, degenerative arthritis of the spine, rated at 20% based on a forward flexion of 40 degrees.  The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms “With or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  There was documentation on the DA Form 2808 addendum, the VA C&P exam and the MEB NARSUM that the CI’s level of pain did not correlate to the clinical findings.  The VA C&P exam documents a thoracolumbar forward flexion of 40 degrees which correlates with their 20% rating.  The NARSUM examiner recorded a forward flexion of 18 degrees; however, he quantified that measurement with several additional observations (CI’s mild over reaction to ROM testing, his ability to bend over much farther when dressing, and the CI’s ability to demonstrate a sit-up in the exam room) all of which decreased the overall credibility of that measurement.  The Board considered all evidence and considered the C&P exam, accomplished only 2 weeks before the NARSUM exam, as the more probative exam.  The Board reviewed the criteria for a 20% rating “Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  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 lumbosacral strain 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.  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 lumbosacral strain 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 his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Lumbosacral Strain	5299-5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130530, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-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, AR20140009370 (PD201300698)

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