RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX	CASE:  PD-2013-01471
BRANCH OF SERVICE:  Army	BOARD DATE:  20141031
SEPARATION DATE:  20040614

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard SPC/E-4 (11B/Infantryman) medically separated for chronic subjective back pain, due to lumbar degenerative disc disease (DDD) without neurologic abnormality.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back pain condition, characterized as “degenerative lumbar disk [sic] disease” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “subjective back pain, due to lumbar degenerative disk [sic] disease without neurologic abnormality” as unfitting, rated 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The conditions rendered me unfit has gotten worse the medication is not helping much and the cost of meds are high this is the only income I have right now.  I’ve tried to work but it’s production work.  Could not keep up.  I also have a inlarge [sic] prostate which was found in the first MRI but never was added as a disability and not it’s bigger than it was when the doctor first seen it.  I take meds for it but they don’t help much also they tretment [sic] for nightmares @ sleepness I was told a form of PTSD.  I seen no combat, just the death of my cousin.  I take it pretty hard.  But no rating for these conditions.  I also have to pay a copay for meds.  There isn’t enough after bills @ copay.  The pain I feel everyday in my back @ legs also the burning in the feet keeps me from holding a job.  Standing, bending lifting, climbing.  Having pain passing urine.  Maybe just a little adjustment in the percentage I could get more medical help for these conditions.” 

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 subjective back pain, due to lumbar degenerative disk disease without neurologic abnormality condition is addressed below; 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 20040604	VA - (8 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain…	5299-5237	10%	DDD, Lumbar Spine	Not Available	20%	20050428	
Other x 0 (Not in Scope)	Other x 7		
Combined:  10%	Combined:  No RD Available	
Derived from VA Rating Decision (VARD) dated 20050517 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Subjective Back Pain Lumbar Degenerative Disk Disease, without Neurologic Abnormality Condition.  The CI presented on 17 December 2003 with a history of low back pain (LBP) which radiated to his knee.  An X-ray that day was unremarkable other than straightening of the lumbar curve indicative of spasm.  He was managed with medications, but his symptoms persisted.  A magnetic resonance imaging on 13 February 2004 revealed DDD at L3-4, L4-5, and L5-S1 with a small tear on the latter disc, but without nerve impingement noted with either.  He was seen 6 days later in orthopedics and noted to have normal posture, (spine) curvature and gait.  The active range-of-motion (ROM) was full.  He was determined to not be deployable and entered into the MEB process.  He was also referred to physical therapy where his forward flexion was documented as 90 degrees and extension 30 degrees, both normal values.  He was again seen in orthopedics on 11 March 2004 and noted to have a normal neurological examination and no signs of nerve root irritation on a provocative test (straight leg raise).  The ROM was normal as charted below.  The CI continued physical therapy during the MEB process.  The narrative summary was dated 11 March 2004 and dictated by the treating orthopedic surgeon.  He noted that the CI had the onset of LBP in 1999.  It was also noted that the CI had not had physical fitness training for 5 years and had been maintained by his unit on light duty despite his infantry MOS.  The examination is documented above.  At the MEB examination 4 days later on 15 March 2004, the CI reported numbness in the left leg to his toes.  On examination, the sensory, motor and reflex examinations were normal.  Provocative testing for nerve root irritation was negative.  The ROM was noted as normal.  Tenderness to palpation was present along the paraspinal muscles.  

At the VA Compensation and Pension (C&P) exam performed 10.5 months after separation, the CI reported that he was working as a security patrolman at missile sites.  Walking was limited to one mile by back pain.  Incapacitation was not recorded.  On examination, his gait was normal.  His posture was “erect.”  He got on and off the examination table slowly, but had “no problem” getting in and out of a chair.  X-rays were normal for the lumbar spine.  He could stand on his toes and heels without pain.  Straight leg raise caused lumbar pain, but radiating pain was not recorded.  The ROM was restricted as noted below.  He had spasm opposite to the side to which he was either bending or twisting.  The goniometric 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)	Ortho ~04 Mo. Pre-Sep	Ortho ~ 03 Mo. Pre-Sep	VA C&P ~ 10.5 Mo. Post-Sep	
Flexion (90 Normal)	FROM	Touch Toes	60	
Combined (240)	---	FROM	100	
Comment	Painful motion not recorded	Painful motion not recorded	Painful motion noted with most movement by history	
§4.71a Rating	0%	0%	20%	

The Board directs its attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10% using an analogous code for lumbosacral strain, 5299-5237.  The VA rated the back at 20% using the 28 April 2005 C&P examination.  The examinations prior to separation consistently recorded the ROM of the back as full or normal.  When the gait was recorded, it was also normal.  Neither spasm nor incapacitation was recorded.  These examinations were 3 to 4 months prior to separation.  The VA C&P examination values supports a 20% rating based on the ROM values.  However, the ROM values recorded are not consistent with the underlying pathology, the observation of a normal gait, or the previous examinations.  The examiner recorded that the CI had difficulty getting on and off of the examination table, but had “no problems” getting in and out of a chair.  This also is inconsistent.  The stated occupation of the CI post-separation, security guard, is also potentially physically demanding.  The Board considered the evidenced and concluded that the examinations prior to separation had a higher probative value for rating purposes and were used in its adjudication.  The Board then considered the evidence.  Absent spasm affecting the gait or spinal contour, an abnormal ROM, or incapacitation, the Board found no route to a rating higher than the 10% adjudicated by the PEB.  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 back 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 back 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 20130923, 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 XXXXXXXXXXXX, AR20150004321 (PD201301471)

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