RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01606
BRANCH OF SERVICE:  Army	BOARD DATE:  20141209
SEPARATION DATE:  20040513

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Army SSG/E-6 (88M30/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 back condition, characterized as “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 “chronic low back pain aggravated in a motor vehicle accident (MVA),” rated at 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was a career designated individual and no weight was given on my behalf.  At the decision time I had 14 years and 8 months in service.  I was not given the option to retire and would like to be change for Medical Retirement.”

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 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 20040317	VA - 3 Mos. Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Aggravated in an MVA	5237	20%	Degenerative Disc Disease Lumbar Spine with History of Radiculopathy Left Leg	5243	10%	20040807	
Other x 0  (Not in Scope)	Other x 3	
Rating:  20%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050127 (most proximate to date of separation)

ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  According to treatment records, the CI experienced intermittent LBP for several years.  Following a MVA in November 2002, the CI reported chronic LBP with radiating pain and was returned from deployment in April 2003 due to LBP.  A magnetic resonance imaging of the lumbosacral spine in May 2003 demonstrated mild degenerative disc disease of L4-5 and L5-S1 with bulging intervertebral discs without evidence of nerve compression.  Electrodiagnostic testing (electromyogram and nerve conduction velocity) on 27 May 2003, was negative for evidence of radiculopathy.  Orthopedic examination on 13 June 2003 recorded ability to flex forward reaching the fingers to 10 “from the floor (correlated with approximately 80 degrees of thoracolumbar flexion based on CI’s height of 71).”  A physical therapy examination on 8 July 2003 recorded full but guarded range-of-motion (ROM).  The orthopedic MEB narrative summary (NARSUM) performed on 8 December 2003, noted chronic LBP that was aggravated by strenuous activities including running, heavy lifting and driving off road.  On examination, the spinal contour was normal and there was no spasm.  The examiner reported lumbar spine flexion of 45 degrees, lumbar spine extension of 15 degrees, lateral bending was 20 degrees to both sides and rotation was 25 degrees to the right and 30 degrees to the left.  Straight leg raise was negative for radicular signs while strength, reflexes and sensation were considered normal.  

At the VA Compensation and Pension (C&P) examination performed on 7 August 2004, ( performed 3 months after separation), the CI reported LBP aggravated by strenuous activity such as yard work.  On examination, the CI had a normal spinal contour, a normal steady gait and could perform a full squat.  There was tenderness but no reference was made to spasm.  Flexion was 65 degrees, extension 20 degrees, lateral bending 20 degrees to both sides and rotation 30 degrees to both sides.  There was painful motion but no change in ROM after repetition.  A leg raise was reported as positive but reflexes, strength and sensation were normal.  An X-ray image of the lumbar spine was normal.  The examiner diagnosed lumbar strain.

The Board directed attention to its rating recommendation based on the above evidence.  PEB rated the chronic LBP 20%, coded 5237 (lumbosacral strain), citing flexion limited to 45 degrees and noting absence of radiculopathy.  The VA rated the degenerative disease lumbar spine, back condition, at 10% as coded 5243 (intervertebral disc syndrome), citing the limitation of motion from the August 2004 C&P examination.  The ROM reported at the time of the MEB NARSUM did not support a rating higher than the 20% rating adjudicated by the PEB in accordance with the VASRD General Rating Formula for Diseases and Injuries of the Spine.  The post-separation VA C&P examination recorded a ROM supporting no higher than the 10% rating adjudicated by the VA.  The Board also considered a rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The criteria are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  No documented physician-directed bed rest was evidence in the treatment records or at the time of the C&P examination.  The Board concluded the evidence did not support a higher rating using this alternate formula providing no additional benefit to the CI.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  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.  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 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 20130925, 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, AR20150006974 (PD201301606)

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