RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01273
BRANCH OF SERVICE:  Army	BOARD DATE:  20141126
SEPARATION DATE:  20040818

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (68W1O/Health Care Specialist) medically separated for back pain.  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 condition, characterized as “lumbar degenerative disk disease (DDD), L3-4, L4-5, and L5-S1” and “herniated disks at L3-4 and L4-5,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the back condition as unfitting, rated at 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “The back condition is not only affecting quality of life, mobility, and the ability to be mobile, but also cause[s] insomnia.  The back condition is also unstable and has affected my ability to work full time.  The back can trigger [ridiculopathy] down both sides of body and instability.”

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 20040722	VA - (5 days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain with Degenerative Disc Disease and Bulging Discs…	5243	10%	Spondylolisthesis L5-S1 with Herniated Disc and Impingement	5239	10%	20040813	
Other x 0 (Not In Scope)	Other x 7	
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20041012 (most proximate to date of separation)

ANALYSIS SUMMARY:

Low Back Pain Condition.  The CI developed low back pain (LBP) beginning in basic training with subsequent development of radiation of pain into the left leg to the left foot.  An magnetic resonance imaging obtained on 12 May 2004, demonstrated bulging intervertebral discs at L3-4, L4-5, and L5-S1.  There was narrowing of the spinal canal without compression of the spinal cord; however there was evidence of compression of the left S1 spinal nerve root.  Neurosurgical examination on 1 June 2004 noted an antalgic gait, painful motion and decreased sensation to pin prick along the left lateral foot and posterolateral calf.  The straight leg raise was positive for radicular symptoms but strength and reflexes were normal.  The neurosurgeon recommended surgery for herniated discs with symptomatic radiculopathy however the CI opted for non-surgical treatment at that time.  At the physical therapy evaluation on 14 June 2004, the CI reported back pain with radiation that was aggravated by bending and lifting.  On examination, the CI could flex, reaching his fingertips to his knees, approximately 45 degrees thoracolumbar flexion.  There was no muscle spasm.  Straight leg raises were negative for radicular symptoms and muscle strength and reflexes were normal.

The MEB narrative summary (NARSUM) on 24 June 2004, noted the back pain was aggravated by bending, twisting, stooping, running and interfered with carrying heavy loads while marching.  During examination thoracolumbar flexion ranged from 57 degrees and decreased to 63 degrees, by the third repetition (57, 60, and 63).  The combined thoracolumbar range-of-motion (ROM) from the third repetition was 155 degrees.  There was tenderness and some back and buttock pain with straight leg raising but no radicular symptoms.  There was decreased sensation to pinprick on the lateral foot, but motor power was intact (muscle strength) and the gait was normal.

The VA Compensation and Pension (C&P) examination on 13 August 2004, a week prior to separation, summarized the history of back pain with radiation limiting activity.  The CI could not walk briskly and the gait was observed to be antalgic.  On examination, there was flexion to 65 degrees with pain and stiffness starting at 45 degrees.  The examiner noted that the CI complained of pain and stiffness with all other motions but combined thoracolumbar ROM was 215 degrees.  There was no abnormal curvature.  There were no sciatica or radiculopathy symptoms with straight leg raising or other movements.  A VA clinic examination on 29 December 2004 (4 months after separation), indicated stable back pain complaints.  On examination, the back was non-tender, there were no muscular deficits and reflexes were normal and symmetric.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP with DDD and bulging discs at 10%, coded 5243 (intervertebral disc syndrome) citing flexion of 63 degrees that was limited by pain.  The VA rated the back pain condition (spondylolisthesis L5-1 with herniated disc and impingement) 10%, coded 5239 (spondylolisthesis) citing flexion of 65 degrees at the time of the VA C&P examination.  The MEB NARSUM examination ROM results at the third repetition with flexion of 63 degrees support a 10% rating.  The VA C&P examination showed a similar flexion to 65 degrees also supporting a 10% rating.  The Board also considered rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The criteria are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  No documented physician directed bed rest was in evidence in the service treatment records or at the time of the C&P examination.  The Board concluded the evidence did not support a higher rating using this alternate formula providing no additional benefit to the CI.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had bulging/herniated disc with symptoms of radiating pain documented in the treatment records, however examinations indicated normal strength and reflexes.  The decreased sensation to pin prick did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  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 LBP with DDD and bulging discs 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.  In the matter of the LBP with DDD and bulging discs 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 20130910, 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 XXXXXXXXXXXXXXXXX, AR20150006423 (PD201301273)

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