RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01774
BRANCH OF SERVICE:  Army	BOARD DATE:  20150121
SEPARATION DATE:  20040719

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-4 (Personnel Specialist) medically separated for a back condition.  The back 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 “chronic low back pain uncomplicated, nonradicular,” 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 subjective back pain without neurological abnormality” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI’s CONTENTION:  “See VA records.”

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:

Service IPEB – Dated 20040617	VA – (6 Mos. Post-Separation)* 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, without Neurological Abnormality	5299-5237	10%	Diffuse Lumbar Spondylosis	5003-5242	10%	20050104	
			Left L5-S1 Radiculopathy 	8599-8520	10%	20050104	
Other x 0	Other x 3	
Rating:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20050323 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Pain (LBP).  This CI has had a long history of LBP.  In the service treatment record, the first mention of LBP was in January 2001 while on a prior period of active duty.  He was running, but was unable to finish his run due to pain in the lower back.  In February 2003, 5 days after mobilization while preparing to deploy, he re-injured his lower back by lifting a heavy sack.  Magnetic resonance imaging showed mild L5-S1 degenerative disc disease and posterior broad-based disc bulge, with small central posterior partial thickness annular tear.  There was no focal soft disc herniation, nerve root impingement, or spinal canal stenosis.  Due to his LBP, the CI was found non-deployable and a MEB was initiated.  The original MEB physical exam (PE) was on 22 April 2003.  A second PE was done on 25 November 2003.  The MEB narrative summary notes that the CI was well appearing, and in no acute distress.  The lumbar spine had a normal lumbar curve, and normal paravertebral musculature.  The CI could forward bend, full side bend, and extend.  Range-of-motion (ROM) measurements were not recorded in degrees.  Neurological exam was normal and gait was normal.  In May 2004, 2 months prior to separation, thoracolumbar ROM was measured by physical therapy.  Those measurements are summarized in the chart below.

The CI was medically separated from service in July 2004.  On 4 January 2005, 6 months later, he had a VA Compensation and Pension exam.  The CI complained of almost constant LBP.  He also reported cramps in posterior thighs and numbness down to calf.  He was able to walk and move around and care for himself; he was independent in his activities of daily living.  He was working for DoD as an automation clerk and he reported no problems with working.  On PE, his posture was erect.  He had symmetry in appearance, and symmetry in rhythm of spinal motion.  There was some tenderness to palpation and spasm at L5-S1.  Thoracolumbar forward flexion was 61 degrees, with pain starting at 50 degrees of flexion.  The ROM was not additionally limited by pain, fatigue, weakness, or lack of endurance.  Neurological exam was normal.  

The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~7 mos. Pre-Sep
	PT ~2½ mos. Pre-Sep
	VA C&P ~6 mos. Post-Sep
	
Flexion (90 Normal)	85	75	60	
Combined (240)	205	155	165	
§4.71a Rating	10%	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The May 2004 ROM evaluation was just 11 weeks prior to the DOS, and therefore had greatest probative value.  At that exam, thoracolumbar forward flexion was 75 degrees, and combined thoracolumbar ROM was 155 degrees.  IAW VASRD §4.71a, a 10% rating is warranted when thoracolumbar forward flexion is greater than 60 degrees but not greater than 85 degrees.  A 10% rating is also warranted when combined thoracolumbar ROM is greater than 120 degrees but not greater than 235 degrees.  Therefore, the Board determined that a 10% disability rating was appropriate for the back pain condition at the time of DOS.  The Board tried to find a path to a higher rating, but there was insufficient evidence of a significantly disabling back condition that would justify a higher rating.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had neurological symptoms, but there was no performance-based evidence that the neurological condition impacted his military duties.  
Therefore, the Board concluded that there was no unfitting radiculopathy present at DOS.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the back pain condition.  It is appropriately coded 5299-5237, and IAW VASRD §4.71a, meets criteria for the 10% rating level.

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 back pain 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 20131015, 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, AR20150009849 (PD201301774)

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