RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01136
BRANCH OF SERVICE:  Army	BOARD DATE:  20140513
SEPARATION DATE:  20040215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M/Motor Transport Operator) medically separated for a lumbar spine condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar condition, characterized as “low back pain-chronic, with myofascial etiology” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB forwarded three other conditions as meeting retention standards.  The Informal PEB adjudicated “chronic low back without neurologic abnormality” as unfitting, rated 10%, citing criteria 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:  “I was found unfit with 10 percent from the Army Physical Evaluation Board and the VA found me to 40 percent for the same issue.  I feel the decision was not correct and should have been found unfit at 40 percent by the PEB, therefore request my PEB to be reviewed.”

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 lumbar condition is addressed below; 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 20031219	VA - Based on Service Treatment Records (STR)*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Chronic Low Back Pain …	5299-5237	40%	STR*	
+ 3 Conditions (Not unfitting and not in scope.)	Other x 11	20040824	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20041108 (most proximate to date of separation [DOS]).
* CI failed to report for scheduled VA exam on 20040824. VARD cited STR evidence.

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The STR documents that the CI first experienced low back pain subsequent to a motor vehicle accident in June 2000.  A full range-of-motion (ROM) was documented at that time and she was placed on a temporary profile with a diagnosis of lumbar strain.  There are sparse STR entries for back pain after that until a flare of pain after epidural anesthesia in late 2002; there are fairly frequent entries from then until separation.  Magnetic resonance imaging of the lumbar spine (9 months pre-separation) was normal, radicular symptoms were minimal, neurological findings were normal and a neurosurgical consultant confirmed that surgery was not indicated.  A physical therapy note in February 2003 (12 months pre-separation) documented that ROM was “decreased by about 20% in all directions.”  An entry in April (10 months pre-separation) documented grossly normal ROM; but, an examiner a month later commented that flexion, extension and lateral flexion were (non-specifically) decreased.  The MEB physical examination in August 2003, documented “full” ROM.  There were no other STR entries providing gross or specific ROM evidence, but none which implied any severe ROM limitation and, there were no entries documenting spasm, abnormal gait or contour, abnormal neurological findings, or provider directed quarters or bed rest.

The narrative summary (NARSUM), 3 months pre-separation, noted “unremitting” non-radiating back pain characterized as “moderate and frequent;” which was exacerbated by prolonged sitting/standing, lifting and bending.  The physical exam documented normal spine alignment with some tenderness.  It did not comment on gait, spasm or guarding and documented normal neurological findings.  The ROM was noted to be limited by pain and the examiner documented that the CI was “able to forward flex to about 30 degrees [normal 90⁰], able to extend to approximately 10 degrees … able to rotate approximately 30 degrees to each side and to bend approximately 30 degrees to each side.”  As noted, there is no VA (or civilian) evidence probative to separation.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating determination cited a combined ROM of 160 degrees (from NARSUM measurements), which is in the 10% range for combined ROM per the VASRD §4.71a rating formula; but, §4.71a provides a 40% rating for “forward flexion of the thoracolumbar spine 30 degrees or less.”  The VA’s 40% rating decision, also referencing the NARSUM examination, invokes the flexion criterion.  Members deliberated several mitigating factors with reference to conceding the single NARSUM flexion measurement at the cusp of the 40% criterion as a basis for the Board’s recommendation; when viewed in context of the total evidence.  There is no evidence in the record over the 3+ year course of symptoms which would corroborate ROM impairment this severe.  It is also unlikely that persistent ROM limitation that severe would have gone unnoted in multiple clinical entries over a protracted course.  There are various entries, as elaborated above, which would counter a conclusion that there was ROM impairment this severe; at least, persistently enough to form a reasonable basis for rating.  This would include the normal ROM observation of the MEB examiner 3 months prior to the NARSUM examination, which was consistent with entries throughout the course of a chronic condition that would not have logically worsened over that short interval.  None of the entries documenting ROM limitation connote a severity approaching that of the NARSUM entry, including, specifically, the estimated 20% reduction which would imply flexion of ~70 degrees.  It is also noted that the 30 degrees flexion from the NARSUM is incongruent with the recorded ROM in other planes, and would expected to be associated with other exam findings not noted (spasm, guarding, and abnormal contour).  Finally, the imprecise language used by the NARSUM examiner in describing his ROM measurements must be considered somewhat of a probative value detractor with regard to VASRD §4.46 (accurate measurement).

After protracted deliberation in consideration of all of these factors, members agreed that the NARSUM flexion evidence was too much in conflict with the totality of evidence to form the sole basis for a rating recommendation of 40%.  Since the NARSUM flexion evidence is rejected as the determinant for rating and no other evidence supports a conclusion that flexion was persistently limited to worse than 60 degrees (the 20% threshold); members agreed that the NARSUM combined ROM and the balance of the evidence is consistent with a fair rating recommendation of 10%.  Duly mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar spine condition.

IAW VASRD §4.71 instruction to “evaluate any associated neurological abnormalities” in spine cases, the Board considered whether additional rating could be recommended under a peripheral nerve code.  The Board must establish a functional impairment linked to fitness in order to recommend separate rating for a radiculopathy associated with unfitting spine conditions; a threshold clearly not reached by the evidence in this case.  Review of the STR revealed no evidence of ratable peripheral nerve impairment in this case which would provide any functional link to fitness.  As a result, the Board could not support a recommendation for an additional disability rating on this basis.

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 lumbar spine 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130818, 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, AR20140021523 (PD201301136)

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