RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301166
BRANCH OF SERVICE:  Army	BOARD DATE:  20140304
Date of SEPARATION:  20040326

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active drilling National Guard SSG/E-6 (11B/Infantryman) medically separated for persistent low back pain (LBP).  He originally injured his lumbar spine during field training exercises in 1998.  In 2001, he developed severe pain that radiated into his right lower extremity and underwent an L4-5 diskectomy on 16 May 2002.  The 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 low back condition, characterized as “chronic low back pain secondary to degenerative disk disease at L4-5 status post L4-5 right L4-5 hemilaminectomy and discectomy in 2002” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “status post right L4-5 hemilaminectomy/discectomy, May 02, with resolution of right sciatica, but persistent low back pain” as unfitting, rated 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “To start, my MDRB examination was a mockery.  When my range of motion was measured, the physician was pushing on my back.  When I said something, we were interrupted & I was held in that position for several minutes before any measurement was made.  At that time I was pushed further down and then a measurement was taken.  I am getting worse and now I can’t even carry my grandson without pain.  I have tried to request a re-evaluation & was sent to Roseburg, OR for an MRI and nothing else was done.  Please help.  I don’t feel that I’m being heard or, even, listened to when I try to bring it up.”

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 low 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 20031223	VA - (9 1/2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P Rt L4-5 Hemilaminectomy/
diskectomy…persistent low back pain	5243/5299/5237	10%	Post Disc Excision Syndrome of L-Spine Involving Chronic Muscular Strain Superimposed on Post-Op & Degenerative Instability	5243-5237	20%	20050120	
No Additional MEB/PEB Entries	Other x 0	20050120	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20050302 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him, but must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

Low Back Condition.  Available records indicate that the CI first reported back pain in August 1998 with documented spasms.  He was diagnosed with lower back strain and treated with antiinflammatory medications and physical therapy.  A physical therapy note dated 17 December 1998 documented an episode of acute onset lower back pain.  The examination revealed tenderness to palpation over the lumbosacral area, left greater then right and was negative for radiculopathy (nerve compression symptoms).  An orthopedic consultation dated 8 June 2001, noted that the CI received some lower back pain relief with physical therapy, but that he developed right leg pain with difficulty sitting.  The physical examination was normal except for a decrease in forward flexion and a positive straight leg raise on the right (a test for nerve pain).  Magnetic resonance imaging revealed bulging disk at the lumbar 4-5 level to the right with narrowing of the disk space.  On 16 May 2002, CI underwent back surgery for removal of the bulging disk and decompression of the spinal cord.  Post-surgical treatment notes evidenced resolution of the right leg pain, but persistent lower back pain.  The narrative summary (NARSUM), 7 months prior to separation, noted continued reports of chronic lower back pain made worse with standing, sitting, walking and lifting.  He reported daily lower back pain with difficulty bending and affecting his daily activities of life.  The physical examination was significant for tenderness to palpation on the bones and paraspinal muscles in the lower lumbar region.  Radicular testing was negative for nerve involvement.  There was no NARSUM active range-of-motion (AROM) measurement documented; however, a physical therapy note a month prior to the NARSUM examination documented flexion to 75 degrees with pain at 25 degrees; extension to 15 degrees with pain at 10 degrees; right and left lateral flexion to 15 degrees with pain and right rotation to 40 degrees, left rotation to 50 degrees with pain.  At the VA Compensation and Pension examination performed 9 months after separation, the CI reported persistent severe lower back pain with radiation to his right buttock.  He also reported right lower extremity weakness and fatigue.  The physical examination was significant for limping with the right lower extremity, tenderness to palpation and a surgical scar.  The examiner noted that AROM was painful with guarding (careful motion to prevent pain).  AROM was documented as flexion 45 degrees, extension 5 degrees, rotation 20 degrees/20 degrees and lateral bending 20 degrees/20 degrees.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the lower back pain as unfitting with a disability rating of 10%, coded 5299-5243, 5237, analogous to intervertebral disc disease and lumbosacral strain.   The VA rated the lower back pain at 20% based on the AROM of 45 degrees, coded 5243-5237.  The Board considered whether the totality of the evidence at the time of separation met the criteria for a higher than 10% disability rating.  The 20% criteria for VA Schedule for Rating Disabilities (VASRD) code 5237 require incapacitating episodes (requiring physician prescribed rest or treatment by a physician) having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months.  There was no evidence of hospitalization, emergency room visits or seeking physician care for incapacitating lower back pain episodes.  The Board determined that 20% criteria were not met.  At the time of separation forward flexion was greater than 60 degrees (75 degrees), the combined thoracolumbar ROM was great than 120 degrees (180 degrees) and there was no evidence of muscle spasms or guarding severe enough to result in an abnormal gait , therefore the Board concluded that the 20% criteria for VASRD code 5243 were not met.  After due deliberation, considering all of the evidence and 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 status post right L4-5 hemilaminectomy/discectomy persistent low back pain condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 status post right L4-5 hemilaminectomy/discectomy persistent 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, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Status post right L4-5 Hemilaminectomy/
diskectomy…persistent low back pain	5299-5243-5237	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130717, 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, AR20140013582 (PD201301166)

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