RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01415
BRANCH OF SERVICE:  Army 	BOARD DATE:  20140919
SEPARATION DATE:  20040717

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31R/ Multichannel Transmission Systems Operator Maintainer) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded degenerative disk disease and left sciatic neuritis to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB for PEB adjudication.  The Informal PEB combined the “degenerative disk disease” and “left sciatic neuritis” conditions and adjudicated “chronic back pain with radiation to legs, without neurologic abnormality” 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 CI writes: “I am unsure of the fairness of a 10% rating for three back conditions.  Each developed during service”.

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 condition 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 20040430	VA* - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5237	10%	Herniated Nucleus Pulposus, L4-L5 with Numbness of Both Legs	5299-5243	10%	20040602	
Other x 0 (Not in Scope)	Other x 0	
Combined:  10%	Combined:  10%	
*Derived from VA Rating Decision (VARD) dated 20040714 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) considers all of the member's medical conditions, but compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  However, the Department of Veteran Affairs (DVA), operating under a different set of laws, is empowered to compensate all service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time.  

Chronic Back Pain.  Review of the service treatment records (STR) reveals that first noted documentation of initial injury was in April 2002, after lifting “heavy cable” the CI immediately felt lower back pain.   The CI reported improvement with LBP until October 2002, when he noted “constant back pain with episodes of stabbing, shooting pain and numbness radiating down both legs”.  Conservative therapy, to including chiropractic and medications, results were described as “minimal successful”, the CI reports a continuation baseline of 4/10 LPB with “exacerbations levels of 7 to 10” and “intermittent bilateral leg numbness”.  Radiographic imaging (10 months prior to separation), revealed degenerative disc disease (DDD) between the fourth and fifth lumbar vertebrae (L4-L5), with a “small central disk protrusion at the L4-L5 level“ with neither nerve root compression nor narrowing of the spinal canal or neuroforamen (openings through which spinal nerves pass).  Lumbosacral X-rays images (obtained 6 and 9 months prior to separation) were normal.  Consultation to orthopedic for persistent LBP symptoms, which determined that the CI’s LPB condition was not amenable for surgery and recommendation for MEB, was made.  

On the DD Form 2807, medical history (6 months prior to separation), the CI noted recurrent back pain, “occasional” numbness or tingling and difficulty sleeping secondary to back pain.  On the narrative summary (NARSUM) (obtained 6 months prior to separation), the CI described LBP as “slight and occasional”, “constant”, that’s made “worse with activities” and “is managed with medications and rest”.  He further reports that “he cannot function in accordance with his MOS duties and responsibilities”.  Upon MEB physical examination, the examiner noted normal gait and posture, with lumbar (low back) tenderness, greater on the left, radiating down the posterior left leg.  Lower extremity strength (5/5), sensation and reflexes were normal.  No incapacitating episodes were noted.

The commander’s statement reported the CI’s inability to bend or to lift [objects] greater than thirty pounds and that due to pain, he was unable to deploy.

At the VA Compensation and Pension (C&P) examination (obtained a month prior to separation), the CI reported constant low back pain (3/10), with partial relief from medications, and “flare-ups”, precipitated by activities such as “lifting heavy objects”, with radiation to the left lower extremity.  On physical examination, posture and gait were normal, noting “mild tenderness” of the lumbar muscles.  Strength and sensation of the lower extremities were normal and the straight leg raise test (for neurological symptoms secondary to nerve root compression) was negative (normal).  The right Achilles reflex was absent.  The VA examiner diagnosed herniated nucleus pulposus at L4-L5 with intermittent numbness of lower extremities.  X-rays images performed 10 months post separation noted “slight rotatory scoliosis”.

The goniometric 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)	PT for MEB. 5 Mo. 
Pre-Sep
(20040212) 	VA C&P ~1 Mo. 
Pre-Sep
(20040602) 	
Flexion (90 Normal)	65	90	
Extension (30)	15	30	
R Lat Flexion (30)	Not measured	30	
L Lat Flexion (30)	Not measured	30	
R Rotation (30)	Not measured	30	
L Rotation (30)	Not measured	30	
Combined (240)	(Unknown)	240	
Comment	Flexion limited by pain. Normal gait.	No pain with movement. Normal gait and posture. 	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The IPEB adjudicated “chronic low back pain with radiation to legs, without neurologic abnormality” as unfitting, rated 10% under VASRD code 5299-5237 (lumbosacral strain).  The VA Rating Decision (VARD), obtained 3 days prior to separation, awarded 10% rating under VASRD code 5299-5243 (intervertebral disc syndrome).  Application of the next higher rating of 20%, using the VASRD General Formula for Diseases and Injuries of the Spine, requires the presence of either thoracolumbar flexion less than 60 degrees, or the presence of “muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour”.  Although an X-ray series did reveal a slight rotatory scoliosis (10 months post-separation), this finding was not noted on previous imagining studies.  Gait and spinal posture were consistently noted as normal and no incapacitating episodes were documented.

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 low back condition.

Peripheral Neuropathy (Left Sciatic Neuritis).  The CI specifically queried “the fairness of a 10% rating for three back conditions”.  VASRD §4.14 (avoidance of pyramiding) states that “the evaluation of the same disability under various diagnoses is to be avoided”.  However, the Board did consider whether an additional rating at separation could be recommended under a peripheral nerve code for the MEB diagnosis of “left sciatic neuritis”.

The MEB concluded that the strength, sensation and reflexes of the lower extremities were tested as normal and with a normal gait.  The radiographic imaging revealed no nerve compression and the nerve conduction velocities (obtained 31 months post-separation) were normal, indicating normal nerve function.

A month prior to separation, at the VA C&P examination, the examiner reported a normal gait and a normal neurological examination with no evidence of radiculopathy, with the exception of an absent Achilles tendon reflex.  The Board members deliberated whether VA evidence of an absent Achilles reflex, with normal gait, suggested impaired fitness to an extent that would justify a separate rating.

Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for the addition of a peripheral nerve rating to disability in spine cases.  The pain component of the neuropathy is appropriately subsumed in the spine rating (VASRD §4.71a:  General Formula for Diseases and Injuries of the Spine) and the sensory component was inconsequential to fitness in this case.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the leg numbness demonstrated that the condition was neither sufficiently profiled nor implicated in the commander’s statement therefore it was not judged to fail retention standards.  This condition was reviewed by the action officer and considered by the Board.  There was no performance-based evidence from the record that this condition independently or significantly interfered with satisfactory duty performance.  The Board concluded that there was insufficient cause to recommend the peripheral neuropathy (left sciatic neuritis) as reasonably justified as separately unfitting and no additional disability rating is recommended.

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 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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130916, 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, AR20150002635 (PD201301415)

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