RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01162
BRANCH OF SERVICE:  Army	BOARD DATE:  20140514
SEPARATION DATE:  20020420

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (31F/Signal Switch Operator) medically separated for chronic low back pain (LBP).  The lumbar spine condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar spine condition, characterized as “lumbar degenerative disc disease and spondylolysis with low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain, due to lumbar degenerative disc disease and spondylolysis, without neurologic abnormality or documented chronic paravertebral muscle spasms” as unfitting, rated 10%, citing application of Department of Defense Instruction (DoDI) 1332.39 and AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “At the time of my evaluation it was determined that I had several problems with my lower back.  There was no review of how the rest of my spine and back were impacted because of my injuries.  It wasn't until several years later and after complaining of problems with my neck that an MRI was completed.  The MRI determined that I was also suffering from cervical stenosis which is the degenerative disc disease that is affecting my back.  I feel that when my condition was first looked at, it was limited to just my lower spine and not my spine as a whole.  My back and neck issues have caused a major change in the way I live my life and the activities that I do.  I've tried to deal with the pain and discomfort by seeking chiropractic help and acupuncture.  It is my belief that at the time of separation there was not enough emphasis on my back as a whole but just a focus on my lower vertebra.  My back issues have led to issue with both hips and problems sleeping.  In my mind there is no way that any of the doctors who treated me should have limited their findings to just the lower back without taking in to question the effects that my diagnosis would have on the rest of my body.”

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 spine condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The requested cervical stenosis, hips and sleeping problems were not identified by the PEB, and are not 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 20020117	VA - (<1 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain due to DDD and Spondylolysis	5299-5295	10%	DDD w/Spondylolysis, lower back	5299-5293	20%	20020409	
Other MEB/PEB Entries x 0	Other x 7	
Rating:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20020515 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain due to DDD and Spondylolysis.  The service medical record indicated the CI had complaints of LBP going back to 1994, progressively worsening over the years that were refractory to conservative management including non-steroidal anti-inflammatory drugs and narcotic analgesics that were used to control the pain.  In October 2001, when the CI was to undergo a lumbar discography and an epidural steroid injection (ESI), he had a herpetiform (blister-like) rash on his back at the L3 or L4 dermatome (lower back area).  The discogram (injection of contrast dye into a disc) was not tolerated due to recurrent nerve pain and myofascial (trigger point) pain; however, an ESI was performed.  The rash resolved thereafter, but the pain persisted.  The MEB physical exam as of 8 November 2001 noted that the CI complained of “low back pain greater than right lower extremity sciatic pain” and there were “no further neurological complaints.”  His neck was “supple,” while there was “moderate myofascial (trigger point) tenderness bilaterally” on the back.  Range-of-motion was “limited to 15 degrees of extension; 90 degrees of flexion by pain” [historic norms are extension 30 degrees and forward flexion 90 degrees].  Neurological examination revealed the CI to be “motor 5/5; sensation intact; reflexes symmetric with down going toes; coordination and gait normal.”  A L3 profile for lumbar degenerative disc disease (DDD) was issued on 10 November 2001 that precluded the CI from running, jumping, stooping, crawling, sit ups and riding or driving tactical vehicles.  The commander’s statement dated 26 November 2001 indicated the CI was not able to perform in his current assignment since he was restricted from being in a field environment where he was to install communications equipment that would require “a lot of lifting.”  The narrative summary noted a magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated multilevel lumbar DDD from L2-3 through L5-S1 with minimal neural compression.  Plain films of the lumbar spine demonstrated a L5-S1 pars defect without a spondylolisthesis and no motion on flexion/extension views.  The diagnoses were lumbar DDD and spondylolysis (a defect in vertebrae connection) with LBP, constant and moderate.  The CI was unable to tolerate high impact activity as addressed in his permanent profile.  The examiner prognosticated that the CI’s pain syndrome was expected to improve slowly with abstaining from high impact activity over the following several years, but it “was possible he could develop progressively worsening pain and possibly more radicular pain or spondylolisthesis (forward slipping of a bone of the spine) that might require operative intervention in the future” since he was a poor candidate at that time.

At the VA Compensation and Pension (C&P) exam performed 11 days before separation, the CI reported a “9/10 pain 2 times per week with prolonged standing, prolonged sitting, bending, lifting, and prolonged lying.”  He used a transcutaneous electrical nerve stimulation (TENS) unit, stretching exercises and Tylenol.  Pain subsided between 2 days and 1 week.”  Lower back exam indicate tenderness to palpation with negative straight-leg raises.  Flexion was “70 degrees with pain from 45 to 70 degrees [historic norms are forward flexion 90⁰ and other axis norms of 30⁰].  The veteran refuses to bend further than 70 degrees. Extension 30 degrees, with pain from 15 to 30 degrees, lateral flexion 35 degrees bilaterally. Rotation 30 degrees bilateral.”  A report of the MRI of the lumbar spine indicated degenerative disc disease mild kyphosis (contour change) and a slight slippage of L2 on L3 with a small herniated disc.

The Board directs attention to its rating recommendation based on the above evidence.  Based on the MRI finding of a small anterior disc at L2-L3 and bulging and herniation at L4-L5, as well as the CI’s complaint of “right lower extremity sciatic pain,” the rating code of 5299-5293 Intervertebral disc syndrome is reasonable and is supported by the VA C&P examination that was more proximate to the date of separation (11 days) than the MEB examination (approximately 5 months) thereby affording a greater probative value to the VA C&P examination.  Additionally, the CI experienced pain 9/10 that lasted from 2 days to a week which represented moderate, recurring attacks.  A 10% rating under that code would be “mild,” which would not take into account the recurring nature of the condition.  Furthermore, the IPEB rating of 10% with VA code 5299-5295 addressed characteristic pain on motion, but the 5299-5293 rating of 20% aligned more closely with the CI’s findings at the time of separation and is pursuant with benefit of doubt in favor of the CI.  Applying code 5292 (Spine, limitation of motion of, lumbar) was a consideration for rating purposes, but would not afford a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the LBP due to DDD and spondylolysis condition with the analogous code 5299-5293 Intervertebral disc syndrome.

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 DoDI 1332.39 and service regulations for rating 5299-5295 was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the LBP due to DDD and spondylolysis condition, the Board majority recommends a disability rating of 20%, coded 5299-5293 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 due to DDD and Spondylolysis	5299-5293	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130821, 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 XXXXXXXXXXXXXXX, AR20140021524 (PD201301162)

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