RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01314
BRANCH OF SERVICE:  Army	BOARD DATE:  20140923
SEPARATION DATE:  20040120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63S/Heavy Wheeled Vehicle Mechanic) medically separated for low 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 P3 profile and referred for a Medical Evaluation Board (MEB).  The low back pain condition characterized as “status post L4-S1 interbody fusion for DDD” and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “low back pain” as unfitting, rated at 10%, citing application of AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please see attached VA Form 21-4138 for issues and reasons for change for the section.”[sic]

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 pain condition is addressed below and no additional conditions, specifically the knees as mentioned in the CI’s contention, 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 20031002	VA - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain (LBP)	5241	10%	Degenerative Disc Disease, L5-S1, s/p Laminectomy with Fusion	5241*	10%	20031217	
Other x 0 (Not in Scope)	Other x6 (Not in Scope)	20031217	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20040407 (most proximate to date of separation)
VARD dated 20140325 increased 5241 to 40% effective 20130222

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.  The Board considers VA evidence within 12 months only to the extent that it reasonably reflects the disability at the time of separation.

Low Back Condition.  The CI had a long history of intermittent lower back pain that worsened in mid-2002.  He had a magnetic resonance imaging study in May 2002 that revealed degenerative disc changes at L4-5 and L5-S1.  The LBP did not respond to conservative treatment and by October 2002, the CI had undergone two epidural steroid injections and one facet block.  His LBP persisted and he developed right sided radicular symptoms which was confirmed by electromyogram/nerve conduction (EMG/NCS) dated 24 Jan 2003.  The EMG/NCS study documented a “…acute on chronic L4 radiculopathy affecting the right lower extremity….”  He then underwent a discogram that produced concordant pain in the L4-5 disc with a “severe degenerative pattern” again confirming the CI’s radicular symptoms.  On 30 April 2003 (approximately 9 months prior to separation), he underwent a surgical fusion of L4-5 and L5-S1.  

The narrative summary (NARSUM) (prepared 5 months prior to separation), noted the CI underwent an L4-S1 posterior fusion on 30 April 2003.  Since that time, the CI had satisfactory recovery and had stop taking his pain medication.  The CI was neurologically intact but was limited somewhat in his activities, primary his capability to left heavy items or running.  His day to day activities were tolerable without pain.  The physical exam findings are summarized in the chart below.

At the VA Compensation and Pension (C&P) examination (performed a month prior to separation), the CI reported lower back ache, without radiating, that occurred only upon sitting or standing for long periods.  The pain was located across the lumbar spine that was 6/10 in intensity and lasted the remainder of the day.  He no longer took medications for his back; he just relaxed, stretched and followed his back hygiene program.  He was working as a mechanic and there was no effect on usual activities except for avoiding sudden bending or prolonged sitting or standing.  His back did not limit his ambulation; however, there was some decrease in motion and function during any flare-ups.  The physical exam findings are summarized below.

The range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM (Degrees)	MEB ~ 5 Mo. Pre-Sep	PT ~3 Mo. Pre-Sep	VA C&P ~ 1 Mo. Pre-Sep	
Flexion (90 Normal)	10	50	90	
Combined (240)	-	-	240	
Comment	Pos. painful motion; Normal strength, reflexes & sensation	Bubble inclinometer used	Pos. painful motion; Pos. tenderness to palpation; Normal strength, reflexes & sensation	
§4.71a Rating	40%	20%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and the VA applied VASRD code 5241 (spinal fusion), rated at 10%.  The PEB referenced IAW AR 635-40, para B29e, which refers to use of passive ROM measurements verses active ROM measurements that’s used by the VASRD.  The evidence supports that the CI’s thoracolumbar ROM improved after his spinal fusion, that a month prior to separation, his ROM was normal and that he no longer took any pain medications.  Rating under the General Formula for Diseases and Injuries of the Spine grants a 10% evaluation for “muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour” as documented on the VA C&P examination performed a month prior to separation.  

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 chronic low back pain 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.  As discussed above, PEB reliance on AR 635-40 for rating the chronic low back pain was operant in this case and the condition was adjudicated independently of that regulation by the Board.  In the matter of the chronic low back pain 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 20130913, 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, AR20150004176 (PD201301314)

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