RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2013-01247
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20040317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-5 (Military Police) medically separated for lower back pain (LBP).  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 “lower back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic LBP as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  He was only evaluated for his back condition.  His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20040130	VA** - Exam not in Evidence	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Mild Lumbar Spondylosis with Chronic Low Back Pain Syndrome	5242	20%	**	
Other x 0 (Not In Scope)	Other x 12	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20130807 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain.  There was a paucity of clinical documents in the case file with regards to the CI’s continuing treatment for his spine condition.  The majority of clinical information was obtained from summary documents that were part of his MEB process.  Additionally, there was a memorandum dated 7 August 2013 that stated many of the CI’s historical medical records (1980-1992 & 2003-2004) were “unavailable for review.”  The CI first experienced LBP after “lifting” while on deployment in March 2003.  His symptoms worsened with walking and or load-bearing.  Neurologic consultation in July 2003 indicated a musculoskeletal lumbar condition without neurologic abnormality.  Failing short-term conservative treatment in theater, he was eventually re-deployed for further diagnostic and definitive care.

At the narrative summary (NARSUM) examination performed on 4 November 2003; (4 months prior to separation) the CI reported a 6/10 scaled “dull to sharp” LBP, worse on the left side that shoots down the back of the thigh; worsened by load-bearing equipment, prolonged sitting/standing, heavy lifting over 10-20 pounds, performing push-ups, sit-ups, running, jumping, and or upon entering or exiting a chair or bed.  He denied falling episodes, spinal weakness, spasms, abnormal sensation, or radicular symptomatology.  His physical examination revealed guarding, tenderness, and painful motion of the lumbar spine.  His lumbar range-of-motion (ROM) was described as, “relatively normal lumbosacral motion.”  The diagnosis was listed as chronic LBP with lumbar spondylosis.  The permanent profile dated 12 November 2003 reflected the same diagnosis and the commander’s letter implicated the proscribed restrictions precluded the CI from his MOS and grade.  The VA Compensation and Pension examination in evidence dated 18 April 2012 was greater than 8 years after separation and therefore, too remote as to be included in the Boards final impairment rating.  However, the VA’s current rating was commenced the day after his separation based upon a new VA claim (in evidence) received on 21 September 2011.

The Board directed attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition slightly differently, they both utilized similar primary codes of 5237 (Lumbosacral strain) and 5242 (degenerative arthritis) respectively; with the PEB citing pain limiting ROM and the VA rating at 20% (exam not in evidence from which rating was awarded).  Board members first agreed that painful motion was adequately described as to justify the PEB’s 10% rating.  Additionally, members agreed that the NARSUM’s description of ROM as “relatively normal lumbosacral motion” did not rise to a compensable level under VASRD criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board agreed that a disability rating of 10% for the chronic LBP condition was appropriately recommended in this case.

The Board additionally considered if the symptomatic left lower extremity radiculopathy symptoms warranted an additional disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  Any pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that any radiculopathy symptoms/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 low back 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 20130909, 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 XXXXXXXXXXXXXXXXXXXX, AR20150018444 (PD201301247)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA