RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxx	CASE:  PD-2013-01647
BRANCH OF SERVICE:  Army	BOARD DATE:  20150602
SEPARATION DATE:  20040319

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Cannon Crewmember) medically separated for a low back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic low back pain as unfitting, rated 10%, with likely application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated.

CI CONTENTION:  “I feel my overall disability should have been rated higher than 10%.  The VA rated my disabilities at 30%.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

IPEB – Dated 20031229	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Degenerative Facet Disease with Mild Diffuse Spondylosis, Lumbosacral Spine	5243-5237	10%	20040206	
Other x 0 (Not in Scope)	Other x 9	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20040322 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  The narrative summary (NARSUM) noted the CI had a history of chronic LBP for approximately 2 years.  He initially reported LBP after stepping in a hole during training.  Notes in the record indicated the LBP was mainly localized, with occasional radiation of pain and numbness down his lower extremities (LE), or tingling of the thighs, without any bowel or bladder problems.  Thoracic and lumbar spine X-rays 29 January 2002 were normal.  Lumbar magnetic resonance imaging 16 January 2003 noted mild degenerative changes without any disc herniation or central spinal canal or neuroforaminal (bony canal through which the spinal nerves exit) stenosis.  At the MEB examination, 9 December 2003, the CI reported LBP, without any radicular symptoms or bowel or bladder problems.  The MEB physical exam noted a normal gait.  There was tenderness to palpation of the lumbosacral area with mild muscle spasm noted.  The CI was able to heel and toe walk.  Back range-of-motion (ROM) was flexion of 70 degrees (normal 90) and combined ROM of 180 degrees (normal 240), with painful motion.  Strength, sensation, and reflexes of the LEs were normal, with negative straight leg raise (SLR) testing bilaterally.

At the VA Compensation and Pension (C&P) Spine examination 6 February 2004 dated, a month before separation, the CI reported constant LBP with stiffness and weakness.  The exam noted a normal gait and posture with normal LE strength, sensation, and reflexes and negative SLR bilaterally.  Thoracolumbar ROM was flexion of 50 degrees and combined ROM of 200 degrees, with painful motion.  The VA examiner noted there were no episodes of physician prescribed bed rest in the past 12 months.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the LBP condition 10%; the PEB coded it as 5299-5237 (analogous to lumbosacral strain) and the VA coded it 5243-5237 (lumbosacral strain with intervertebral disc syndrome).  The Board noted that the VA Rating Decision noted full ROM, “except flexion (0-50/90).”  Although the MEB exam, 3 months before separation, supports a 10% rating, the Board determined that according to VASRD rules, in effect on the date of separation, for rating the spine the pre-separation C&P examination, the most proximate exam to separation, supports a 20% rating for “forward flexion of…greater than 30 degrees but not greater than 60 degrees.”  There was no evidence of “flexion of…30 degrees or less” to support the next higher evaluation of 40%.  There were no documented episodes of physician prescribed bed rest for the LBP in record to support a higher evaluation based on incapacitating episodes.  The Board also considered if additional disability rating was justified for peripheral nerve impairment related to the back condition.  Although the CI occasionally reported radiation of pain to his LEs, there was no clinical evidence of nerve impingement - SLR testing was always negative, exam of the LEs was normal, and there was no evidence of a LE radiculopathy noted on the MRI.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  Since there was no evidence of a LE sensory or motor deficit related to the back condition that could be considered separately unfitting in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (Higher of two evaluations), the Board recommends a disability rating of 20% for the LBP condition, coded 5299-5237.   

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 LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain Condition	5299-5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130926, 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 xxxxxxxxxxxxxxxxxxxxxx, AR20150012436 (PD201301647)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						

CF: 
(  ) DoD PDBR
(  ) DVA