RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01409
BRANCH OF SERVICE:  Army	BOARD DATE:  20141119
SEPARATION DATE:  20040524

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (44B/Metal Worker) medically separated for chronic low back pain (LBP).  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 “chronic low back pains with multiple levels of degenerative disk disease and status post (s/p) discectomy of L4, L.5 and arthritis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain secondary to multilevel degenerative disc disease, s/p discectomy L4/L5” as unfitting, rated at 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 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 20040429	VA - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Secondary to Multilevel Degenerative Disc Disease, Status Post Diskectomy L4/L5	5243-5299 5237	10%	Low Back Condition	5237	20%	20040524	
Rating:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20040727 (most proximate to date of separation)

ANALYSIS SUMMARY:

Chronic Low Back Pain Secondary to Multilevel Degenerative Disc Disease Condition.  The CI initially presented with lower back pain in March 2003.  He reported LBP with radiation down the right lower extremity.  He was treated conservatively.  A magnetic resonance imaging (MRI) study dated 14 May 2003 revealed multilevel degenerative disc disease (DDD) with mild to moderate nerve compression.  An electromyogram performed on 30 May 2003 demonstrated chronic right L5 radiculopathy.  The CI underwent a right lumbar diskectomy on 29 July 2003.  A MRI preformed on 18 September 2003 evidenced L4-5 surgical discectomy, moderate to severe bilateral neural foraminal stenosis (nerve root exit narrowing), bilateral neural recess stenosis, fibrosis (scar tissue) encasing the right L5 nerve root and persistent multilevel DDD.  Despite surgery, steroid injections and conservative management, the CI continued to report LBP with radiation down the right lower extremity.  

The narrative summary (NARSUM) examination dated 4 March 2004 the CI reported persistent LBP with radiation down the right lower extremity and numbness in the right foot.  The physical examination was significant for flexion limited to 32 degrees, extension to 10 degrees without evidence of pain.  Maneuvers for radicular pain were negative.  The examiner rendered a diagnosis of chronic LBPs with multiple levels of degenerative disk disease, s/p discectomy of L4, L5, and arthritis.  

At the VA Compensation and Pension examination (performed 3 months after separation), the CI reported chronic low back pain aggravated by prolonged sitting and lifting and carrying objects.  The pain radiated down his right lower extremity.  He reported use of an electrical stimulation unit, corset back brace, pain medications and muscle relaxants for relief.  The physical examination demonstrated a mild limp, asymptomatic surgical scar and tenderness to palpation at the right lumbar level, and mild muscular atrophy of the lumbosacral back.  Range-of-motion (ROM) was limited to 55 degrees of flexion and 15 degrees of extension.  The examiner diagnosed lumbosacral DDD with loss of ROM.  The examiner noted that there was evidence of pain with use and fatigability.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB determined that the chronic LBP secondary to multilevel DDD, s/p discectomy L4/L5 existed prior to mobilization, but was permanently service aggravated.  The PEB adjudicated the chronic LBP secondary to multilevel DDD as unfitting with a disability rating of 10% for pain limited motion, coded 5243-5299-5237, intervertebral disc disease and analogous to lumbosacral strain.  VA rated the low back condition at 30% (limitation of lumbosacral flexion to 55 degrees at 20% with 10% for excessive fatigability).  The Board considered whether there was evidence for a higher than 10% rating at the time of separation.  The Board noted that forward flexion greater than 30 degrees, but not greater than 60 degrees was evidenced by the NARSUM.  The VA examination evidenced flexion not greater than 60 degrees and an abnormal gait.  The Board determined that criteria were met for a 20% rating for the LBP condition.

The Board noted that the PEB adjudicated with lower back condition notation of “resolution of radiculopathy.”  The Board considered whether the right lower extremity radicular pain was separately unfitting.  The right lower extremity nerve pain was persistent and there was radiographic evidence of nerve root compression, however there was no muscle weakness.  The Board determined that the right lower extremity radicular pain was not separately unfitting 

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a combined disability rating of 20% for the chronic LBP secondary to multilevel DDD, s/p diskectomy L4/L5 with radiculopathy 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.  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 LBP secondary to multilevel DDD, s/p discectomy L4/L5 condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

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

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic low back pain secondary to multilevel degenerative disc disease, status post diskectomy L4/L5 condition	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130914, 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, AR20150006338 (PD201301409)

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:

CF: 
(  ) DoD PDBR
(  ) DVA