RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301030
BRANCH OF SERVICE:  Army	BOARD DATE:  20140702
SEPARATION DATE:  20080123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E4 (11C10/Mortar-man) medically separated for a back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain with spondylolysis of the L5 region” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic low back pain rated analogously to lumbrical strain” as unfitting, rated 10% citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “When I was being medically discharged I thought I Fractured my back as a kid.  But going through the VA process and getting old medical records it say I DID NOT FRACTURE MY BACK.  I have had pain in my back ever since I got in the Tracked Vehicle accident (113 mortar track) I have statement from fellow soldiers stating the accident and that I wasn’t the same after the accident.  I was somebody who was in the best shape of there [sic] life before the accident.”    The CI included additional remarks in Block 15 of his application and these were reviewed by the Board and considered in its recommendations.

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 back 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 20071212	VA - (based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Rated Analogously to Lumbrical Strain with Atraumatic Onset	5299-5237	10%	Back Injury	5237	NSC*	STR	
Other x 0	NSC x 3	STR	
Combined:  10%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20090225 (most proximate to date of separation [DOS]).
*VARD dated 20110519 increased to 10%. 

ANALYSIS SUMMARY:  Board members first noted an anatomical inconsistency with the PEB’s verbiage of “lumbrical” and assumed the intended was to utilize “‘lumbosacral” instead.
Chronic Low Back Pain:  Absent direct trauma, the CI first reported low back pain (LBP) while in basic training in January 2006 and, persisted throughout the balance of his career.  He reported sharp LBP with stiffness and spasm, worse at night and with increased activities.  The STR noted a gymnastic accident resulting in an L-5 compression fracture prior to service entry in 2005.  Radiologic workup revealed minimal lumbosacral degenerative changes without evidence of prior lumbar (compression) fracture.  In October 2007, he struck his low back against a hatch on a tactical vehicle; increasing his prior LBP symptoms.  Multiple treatment modalities (including physical therapy and multiple medications) were pursued and the first temporary profile was issued in March 2007.  Absent neurologic abnormality, surgery was not indicated.  Few STR entries documented low back tenderness, back spasms, painful motion with occasional altered gait.  There were no periods of incapacitation.  At the MEB narrative summary (NARSUM) examination on 26 November 2007; 2 months prior to separation, the CI reported a sharp/stabbing intermittent LBP associated with spasms, localized to the mid L5-S1 area, aggravated with activity and minimally relieved with rest.  There was no comment in regards to any associated radicular symptoms.  Strength, motor, and sensory exams were normal.  Lumbar X-rays were unchanged from prior exams.  The physical revealed low lumbar tenderness and limited painful motion.  Range-of-motion (ROM) was decreased at flexion “approximately” 60 degrees (normal 90 degrees) and combined ROM 170 degrees (normal 240 degrees).  Eight months earlier to the NARSUM, there was an STR note that revealed forward flexion of the low back to 70 degrees.  There was no VA Compensation and Pension examination for review and the VARD indicated that the CI failed to show for his scheduled appointment on 3 February 2009.

The Board directs attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition differently, they both utilized (in various combinations) the same 5237 code (lumbosacral strain) and rated 10% (not service-connected by the VA by virtue of an appointment “no show.”)  Board members first agreed that sufficient evidence of painful motion was present to justify the PEB’s 10% rating IAW §4.59.  The service examination also revealed compensable ROM which was recorded as an “approximate” degree angle that was directly at the cusp for a higher rating level.  The CI’s recorded forward flexion of the thoracolumbar spine as “approximately 60 degrees” depicts pure speculation in determining a precise measurement of that less than or equal to 60 degrees (equivalent rating of 20%), or greater than 60 degrees (equivalent rating of 10%).  IAW VASRD §4.71a and by Board convention, each ROM measurement is rounded to the nearest 5 degrees (reference Note 5 of the general spine formula) and therefore, any actual flexion measurement of 58 through 62 degrees would in fact be 60 degrees for rating purposes and that of 63 through 67 degrees would equate to 65 degrees.  In consideration of the totality of evidence as well as Board discussions that centered about limited or absent objective findings such as persistent active spasms or consistent altered gait coupled with prior documentation of flexion to 70 degrees, Board member consensus was that the NARSUM’s record of “approximately 60 degrees” was more likely than not an actual measurement within the later stated range above; and, therefore is rated above the 60 degree criteria level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two ratings), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130719, 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, AR20140018966 (PD201301030)

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.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA