RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01560
BRANCH OF SERVICE:  Army	BOARD DATE:  20141210
SEPARATION DATE:  20040413

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Motor Transport Operator) medically separated for 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 pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated his back as unfitting and rated it at 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I [have] degenerative-joint-disease of the lumbar spine.”

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; 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 20040126	VA (Not Service Connected)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Without Neurological Abnormality	5299-5237	10%	Degenerative Joint Disease of the Lumbar Spine …	5243	NSC*	~2001*	
Other x 0 (Not In Scope)	Other x 9	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20061102 (most proximate to date of separation [DOS]).
*VARD dated 20120316 added lumbar spine 10% rating (5003-5242) effective 20040414.

ANALYSIS SUMMARY:

Back Condition.  The narrative summary (NARSUM), written 5 months prior to separation, noted that the CI had been complaining of LBP for a number of years, with gradual insidious onset, and without any specific history of trauma.  The CI had been followed by the VA for approximately 2 years for his back pain with a number of physical therapies.  The symptoms were primarily in his lower back with no radiating pain or symptoms into his legs, and without any bowel or bladder problems.  Prior magnetic resonance imaging had multiple demonstrated disc herniations in the lower back with moderate narrowing of the spinal canal and severe narrowing of the neural foramen (nerve outlet space) at L5-S1.  At the NARSUM exam the CI had no muscle atrophy below the waist, normal reflexes, normal gait, and a normal curve of the lower back.  The examiner stated, “He could full forward bend, side bend 25 degrees right and left [normal 30], extend 20 degrees [normal 30].”  The medical records documented lower extremity peripheral nerve sensory deficits attributed to the CI’s diabetes.  

The VA did not service-connect the LBP condition proximate to separation and there was no pre-separation VA exam.  VA clinical notes, approximately 17 months prior to separation, indicated the CI was “still referring LBP associated to bilateral leg weakness and numbness” and noted mild left lower leg (gastrocnemius) atrophy, full active range-of-motion (ROM) of the back, and grossly normal strength and sensation of both legs.  At a VA Compensation and Pension exam over 4 years after separation, the CI reported flare-ups of his back pain every 1 to 2 months that lasted 3 to 7 days and that he used a cane and was unable to walk more than a few yards.  He had not had any physician prescribed bed rest in the last year.  On examination, there was tenderness and spasm of the lower back muscles, pain with motion, symmetric spine without abnormal curvature, and there was slight (4/5) decrease in some left ankle and great toe muscles, no muscle atrophy, and normal sensation.  Gait and ROMs were normal (flexion from 0 to 90 degrees and lateral flexions and rotations from 0 to 30 degrees).  Following this exam, as noted above, the VA granted service-connection for the back condition with a 10% rating effective back to the day after separation.

The Board directed attention to its rating recommendation based on the above evidence.  The only ratable examination of the spine done near the time of separation was the NARSUM exam, which the PEB rated at 10%.  Remote from separation, the VA reviewed the service treatment record (and additional records) and also rated the back condition at 10%.  While the NARSUM examination did not comply fully with VA examination standards, the Board found it sufficient to determine a valid disability rating.  The exam revealed a decrease in the combined ROM (e.g., extension 20 degrees, while normal is 30 degrees), which warranted a disability rating of 10% for “combined range of motion of the thoracolumbar spine greater than 120⁰ but not greater than 235⁰.”  The annotation of “full forward bend” did not support a higher rating for limitation of forward flexion.  The exam (and the record proximate to separation) did not support a higher rating as there was no evidence that the combined ROM of the thoracolumbar spine was less than 130 degrees, of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or physician-prescribed bed rest having a total duration of at least 2 weeks.  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.

The Board additionally considered if the neurologic symptoms of the lower extremities warranted an additional disability rating under a peripheral nerve code.  The pain component of a radiculopathy is subsumed under the general spine rating (IAW §4.71a).  The 17 month prior to separation note of complaints of bilateral leg weakness and numbness with left lower leg atrophy was noted; however, there was no motor or peripheral nerve deficit noted on the NARSUM or MEB exam.  Diabetic neuropathy (sensory changes) of both legs was noted in the treatment records, but was not noted on the profile or commander’s statement.  The record did not document significant duty impairment from any neurologic condition of the lower legs which could be attributed to the lower back condition proximate to separation.  Board members agreed that the requisite link of the remaining symptoms with functional impairment was not in evidence.

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, and no ratable peripheral nerve condition.  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 20130420, 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, AR20150007602 (PD201301560)

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