RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01603
BRANCH OF SERVICE:  Army	BOARD DATE:  20150108
Separation Date:  20031121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (54B/Chemical Operations Specialist) 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 mechanical low back pain” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic LBP, without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion” as unfitting, rated 10% citing Department of Defense Instruction (DoDI) 1332.39.  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 lumbar 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 20030915	VA (27 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP…	5299-5295	10%	Degenerative Disc Disease, Lumbosacral Spine	5242	20%	20060315	
Other x 0 (Not in Scope)	Other x9 	20060315	
Rating:  10%	Combined: 90%	
Derived from VA Rating Decision (VARD) dated 20060708 most proximate to the date of separation (DOS)

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.  The Board notes the earliest VA evaluation was 27 months after the DOS.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  Therefore the record evidence was assigned almost exclusive probative value with respect to the Board’s recommendations.

Chronic LBP Condition.  The record documents that the CI had a long history of LBP and identified several injuries, none of which was identified as causing his LBP.  The pain reoccurred with running and doing push-ups and intermittently radiated into his right or left leg.  Plain film X-rays were normal.  He was treated conservatively and given duty limitations, which varied between L2 and L3 over a 3-year period.  A computed tomography scan demonstrated early degenerative disc disease without evidence of disc herniation and moderate degenerative changes of both sacroiliac (SI) joints.  The pain management examiner noted mild tenderness of the paravertebral muscles with normal motor, sensory, reflexes and gait.  The diagnosis was chronic LBP with no evidence of radiculopathy.  A lumbar spine magnetic resonance imaging study 14 months prior to separation demonstrated a bulging disc at L4-5 with mild left SI joint disease.  The last medical treatment note was 11 months prior to separation by a neurosurgeon who noted a normal physical exam, diagnosed mechanical LBP, and noted, “I have nothing further to offer medically for his LBP – will initiate MEB.”  The MEB narrative summary (NARSUM) exam accomplished approximately 4 months prior to separation documented that the CI had chronic LBP with bending and lifting.  The examiner opined that the LBP was rated as slight and frequent.  The MEB NARSUM physical exam findings are summarized in the chart below.  The VA Compensation and Pension (C&P) exam 27 months after separation documented a 10-year history of chronic, localized squeezing, aching sharp back pain.  The pain was made worse by physical activity, was relieved by rest, and did not cause any incapacitation.  The pertinent physical exam findings are summarized below.

There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM(Degrees)	MEB 3.5 Mo. Pre-Sep	VA C&P 27 Mo. Post-Sep	
Flexion (90 Normal)	90	60	
Combined (240)	-	170	
Comment	Normal gait; Pos. tenderness to palpation (TTP); Normal reflexes; 2/5 Waddell’s signs	Normal gait; Pos. painful motion & TTP; Pos. straight leg raise bilaterally; No Deluca criteria w/o speculation	
§4.71a Rating			
5299-5295	10%	N/A	
5242	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB applied the analogous VASRD code of 5299-5295 (lumbosacral strain) and rated it 10% based on characteristic pain on motion.  The 2003 VASRD coding and rating standards for the spine, which were in effect at the time of the PEB’s adjudication, were changed to the current §4.71a rating standards 2 months prior to the CI’s DOS and code 5295 was removed.  The Board’s recommendation, IAW DoDI 6040.44, must be premised on the VASRD in effect at separation, which was the current General Rating Formula for Diseases and Injuries of the Spine utilized by the VA for its coding/rating 31 months after separation.  The VA applied code 5242 (degenerative arthritis of the spine) and rated it 20% based on the ROM measurement of 60 degrees forward flexion.  As noted earlier, the C&P exam was 27 months after the DOS and therefore, Board members agree that the NARSUM exam (performed 4 months prior to separation and just as detailed as the C&P exam) was the most probative document for basis its rating recommendation.  The NARSUM exam documented non-compensable ROM measurements which were supported by the neurosurgeon’s exam 11 months prior to separation which documented “full ROM of lumbar spine; no spasm, lists or tenderness.”  The NARSUM exam did, however; document the presence of tenderness to palpation of the lumbar spine and paraspinal muscles.  Under the General Rating Formula for the Spine, localized tenderness not resulting in abnormal gait would result in a 10% rating.  That 10% rating would confer no benefit to the CI.  The Board agreed that there was no radiculopathy with the LBP.  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 chronic LBP 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.  As discussed above, PEB reliance on DoDI 1332.39 for rating chronic low back pain was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the Chronic LBP 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 20130520, 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 XXXXXXXXXXXXXX, AR20150007432 (PD201301603)

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:

						         
CF: 
(  ) DoD PDBR
(  ) DVA