RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01730
BRANCH OF SERVICE:  Army	BOARD DATE:  20140710
SEPARATION DATE:  20051123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (64D/Armament/Electrical/Avionic Systems) medically separated for a back condition.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic back pain, due to lumbar degenerative disc disease,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Formal PEB (FPEB) adjudicated chronic back pain as unfitting, rated 0%, with likely application of Department of Defense Instruction (DoDI) 1332.39.  The CI appealed to the US Army Physical Disability Agency, which affirmed the FPEB finding and rating.

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 back condition is addressed below.  Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service USAPDA – Dated 20050909	VA* - (8.1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain Due to Degenerative Disc Disease	5299-5242	0%	Degenerative Disc Disease w/ Loss of Lordotic Curve	5242-5003	10%	20060724	
Other x 0 (Not in Scope)	Other x 9	20060724	
Combined:  0%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20061115 (most proximate to date of separation (DOS))
**Rating increased to 40% effective 2009 derived from VARD 20090828

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to the VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Chronic Back Pain Due to Degenerative Disc Disease.  The goniometric range-of-motion (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)	PT 4.9 Mo. Pre-Sep
(20050628)	VA C&P 8.1 Mo. Post-Sep
(20060724)	
Flexion (90 Normal)	90 (110/105/110)	90	
Extension (30)	30 (25/27/27)	30 (35)	
R Lat Flexion (30)	30 (30/32/33)	30	
L Lat Flexion (30)	30 (25/27/30)	30 (35)	
R Rotation (30)	30 (45/42/44)	30 (35)	
L Rotation (30)	30 (42/41/43)	30 (35)	
Combined (240)	240	240	
Comments	“Full pain-free AROM”	Painful motion
Tenderness	
§4.71a Rating	0%	10%* 	
*IAW §4.59 (Painful motion)

The examination records indicate a history of back pain since 1995 and the CI reported a 10-year history of low back pain (LBP) during disability evaluation.  During 2004 the CI passed the physical fitness test in July and October.  A 21 May 2004 clinic encounter recorded LBP for a month.  A 2 December 2004 clinic encounter recorded LBP for 3 months with tingling in the left leg.  At a clinic appointment 10 February 2005 the CI reported a 1-year complaint of LBP with radiation into the buttock.  X-ray of the lumbar spine on 10 February 2005 showed mild degenerative disc disease (DDD).  A 14 March 2005 spine magnetic resonance imaging showed DDD with L5-S1 disc protrusion, foraminal compromise and mild to moderate nerve root compression.  At the 5 May 2005 orthopedic surgery appointment, for bulging discs and foraminal stenosis, the CI complained of lower back pain (rated 1-2 on the 10 scale).  The diagnosis listed L5-S1 DDD with no radicular complaints.  The CI was not deemed a surgical candidate and orthopedic surgery issued a temporary physical profile for lumbar degenerative disc.  The MEB history and physical examination performed on 10 June 2005 (recorded on DD form 2807 and DD form 2808), noted CI report of chronic LBP since February 2004 without specific injury.  Pain was increased with prolonged standing and associated with radiation of pain down the left leg with prolonged standing.  The CI denied numbness or tingling.  On examination, there was tenderness of paraspinal muscles.  There was “no limitation of movement.”  Gait was normal, lower extremity strength and reflexes were normal and straight leg raising was negative for radicular signs.  At the 28 June 2005 physical therapy MEB examination, the CI complained of LBP with left lower extremity symptoms.  He reported constant dull aching 2/10 LBP with intermittent sharp pain.  On physical examination, the CI demonstrated full pain-free active ROM recorded in the chart which was not limited by pain.  In the 6 July 2005 MEB narrative summary (NARSUM), the CI complained of 2-4/10 dull back pain which was moderate in severity.  The chronic pain was exacerbated by flexion, extension and movement; relieved with rest.  On physical examination, the CI demonstrated full active ROM with pain in lumbar flexion and extension.  Bilateral lower extremities showed 5/5 strength and normal deep tendon reflexes (2+).  

At the 24 July 2006 VA Compensation and Pension (C&P) examination on 8 months post-separation, the CI reported constant 1/10 LBP with exacerbations to 5-6/10.  He reported flare-ups, lasting 1 to 2 days, at least one to two times per month.  Episodic flare-ups were so severe that he could not move or get out of bed.  He had not been prescribed bed rest by a physician for his reported incapacitating episodes, nor received physical therapy.  Exacerbations were caused by merely getting out of bed, twisting, turning, sitting longer than 30 minutes or walking greater than one half mile.  Pain was relieved by rest, hot baths and analgesics.  Physical examination showed normal posture and gait (native, heel, toe, tandem gait).  The CI reported back pain with left hip full ROM.  Documented spine ROM normal as recorded in the chart.  There was pain reported at end ROM.  Examination demonstrated lower back bilateral paraspinal muscles tenderness to palpation without spasms.  Straight leg raise test (assesses sciatic nerve root compression/irritation a by herniated lumbar disc) was positive with pain radiating to left thigh.  Loss of lordotic curve of the spine was noted on exam.  Neurological examination documented intact sensation and reflexes.  Diagnoses were listed as DDD and loss of lordotic curve on physical examination.

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB rated the unfitting chronic back condition as degenerative arthritis of the spine (5299-5242) at 0%, citing absence of neurologic abnormality or limitation of motion.  The VA rated the service connected chronic back condition as degenerative arthritis of the spine (5242-5003) at 10% citing painful motion.  Although the PEB and VA used different codes, both codes are rated under the General Rating Formula for Diseases and Injuries of the Spine, based on limitation of thoracolumbar ROM.  The ROMs in both proximate examinations (MEB and C&P) were normal and did not attain a minimum rating based upon the General Rating Formula for Diseases and Injuries of the Spine.  The higher 10% rating would require flexion of greater than 60 degrees but not greater than 85 degrees or a combined ROM of greater than 120 degrees but not greater than 235 degrees for the thoracolumbar spine.  The C&P examination supported a 10% rating based on the presence of tenderness and painful motion.  There was no muscle spasm or guarding sufficient to cause altered contour or abnormal gait to support consideration of a 20% rating.  The Board agreed a 10% rating was supported based on functional loss (§4.40) or painful motion (§4.59).  The Board also considered rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The CI had intervertebral disc disease with intermittent lower extremity radicular symptoms.  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 evident in the service treatment records or at the time of the MEB NARSUM or C&P examinations.  There was no evidence of incapacitating episodes due to intervertebral disc syndrome for rating consideration.  Finally, the Board considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had intervertebral disc disease with intermittent reports of radicular pain (right then left lower extremities).  The critical decision is whether or not there was significant motor weakness or sensory loss which would impact military occupation specific activities.  The MEB NARSUM examination documented normal strength and reflexes and the C&P examination documented intact sensation, position sense, and normal reflexes.  There was no evidence that motor weakness or sensory loss existed to any degree that could be described as functionally impairing.  The presence of functional impairment, with a direct impact on fitness, is the key determinant to recommend any condition for rating as additionally unfitting.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic back pain condition (5299-5242).

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.  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5242 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:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Back Pain 	5299-5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131022, 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 XXXXXXXXXXXXXXXXX, AR20150002628 (PD201301730)

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 10% 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