RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxx	CASE:  PD-2013-01347
BRANCH OF SERVICE:  Army  	BOARD DATE:  20150619
SEPARATION DATE:  20040406

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-6 (Cargo Specialist) medically separated for low back pain.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued an L3 profile and referred for a Medical Evaluation Board (MEB).  “Herniated nucleus pulposus with radicular symptoms” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded one other condition (hypertension) for PEB adjudication.  The Informal PEB found the “chronic back pain, status post lumbar fusion” unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The hypertension condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His conditions continue to worsen and negatively impact his daily activities.  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 20040225	VA* – (~3 mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Status Post Lumbar Fusion	5241	10%	Herniated Nucleus Pulposus (HNP)	5243	10%	20040709	
			Bladder Dysfunction, related to HNP 	5243-7542	10%	20040709	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 3 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20040922 (most proximate to date of separation (DOS)) 

ANALYSIS SUMMARY:  

Chronic Back Pain.  This CI has had a long history of low back pain (LBP).  In 1989, he underwent spinal fusion at L4-L5.  In 1995, he injured his back by jumping off a rail car.  In 2003, he injured his back by falling down some stairs.  The LBP was treated with physical therapy (PT), lumbar traction, transcutaneous electrical nerve stimulation (TENS), anti-inflammatory drugs, and epidural steroid injections.  In spite of all treatment efforts, his LBP persisted and an MEB was initiated.  The MEB narrative summary (NARSUM) was dictated on 24 October 2003.  The CI reported LBP, with pain down the left leg.  On physical examination (PE), there was low back tenderness on the left, with palpable spasm.  Straight leg raise (SLR) was positive, left worse than right.  Neurological exam was normal.  Forward flexion was 80 degrees.

The CI was medically separated on 6 April 2004.  On 9 July 2004, 3 months later, he had a VA Compensation and Pension (C&P) exam.  He reported that the LBP was constant.  Occasionally, when he made a wrong move, he would have sharp, severe, radiating pain down the left leg to the toes.  On PE, his gait was described as “guarded.”  The spine was symmetrical in appearance, and spinal curvatures were normal.  There was no spasm, and the neurological exam was normal.  The range-of-motion (ROM) evaluation in evidence, which the Board relied heavily upon in arriving at its rating recommendation, is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	VA C&P ~3 mos. Post-Sep
(20040709)	
Flexion (90 Normal)	70	
Extension (30)	10	
R Lat Flexion (30)	15	
L Lat Flexion (30)	15	
R Rotation (30)	20	
L Rotation (30)	20	
Combined (240)	150	
Comment	with guarded gait	
§4.71a Rating	20%*	
	                                           *20% disability rating based on guarded gait

The Board directed attention to its rating recommendation based on the evidence.  The PEB and the VA chose different coding options for the LBP condition, but both assigned a 10% disability rating.    The July 2004 C&P exam was just 3 months after the date of separation (DOS), and therefore had significant probative value.  At that exam, thoracolumbar forward flexion was 70 degrees, and combined thoracolumbar ROM was 150 degrees.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 10% rating is warranted when forward flexion is greater than 60 degrees but not greater than 85 degrees.  A rating of 10% is also warranted when thoracolumbar combined ROM is greater than 120 degrees but not greater than 235 degrees.

The Board then considered the matter of the CI’s abnormal gait.  At the July 2004 C&P exam, his gait was described as “guarded.” IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 20% rating is warranted when there is evidence of muscle guarding severe enough to result in abnormal gait.  The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had neurological symptoms, but there was no performance-based evidence that the neurological condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at DOS.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the LBP condition.  It is appropriately coded 5241, and IAW VASRD §4.71a, meets criteria for a 20% rating because of muscle guarding severe enough to result in abnormal gait.

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 Chronic back pain, status post lumbar fusion, the Board unanimously recommends a disability rating of 20%, coded 5241, IAW VASRD §4.71a.   There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic back pain, status post lumbar fusion  	5241	20%	
COMBINED	20%	

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, AR20150012423 (PD201301347)

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