RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01815
BRANCH OF SERVICE:  Army	BOARD DATE:  20140528
SEPARATION DATE:  20050909

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (21E/Heavy Construction Equipment Operator) medically separated for a chronic low back pain (LBP) condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “lower back pain with herniated nucleus pulposus (herniated disc) at L5/S1 and sacral-Iliac (SI) joint pain secondary to degenerative joint disease (DJD),” 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, with L5-S1 disc protrusion, without neurologic abnormality” as a single unfitting condition, rated 10%.  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 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 20050805	VA - (6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	DDD L5-S1 and Sacroiliac Joints	5242	10%	20060320	
MEB/PEB Entries X 0	Other x 3	20060320	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20060816 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The service treatment record (STR) reflected that the CI first experienced non-traumatic LBP in late 2002 and initially received chiropractic treatments in early 2004.  His LBP continued with frequent radicular pain symptoms into both legs; right greater than left.  Despite additional physical therapy and local injections, his pain persisted throughout the balance of his career.  Radiologic work-up was significant for degenerative disc disease (DDD) of the lumbosacral spine; specifically at L5-S1.  His condition was considered non-surgical by orthopedics and neurosurgery and remained under the care of pain management.  Electro-diagnostic tests were normal.  Having normal studies coupled with a normal motor/strength examination; a spinal related lower extremity radiculopathy was ruled out.  Multiple STR entries documented the presence of mild back spasms with a normal gait.  There were no periods of incapacitation.  The MEB narrative summary examination (6 weeks pre-separation), noted his chief complaint as “continuous pain radiating down right leg.”  He endorsed a constant sharp, burning LBP “extending down the right leg all the time.”  “He cannot run, jump, do sit-ups or push-ups.”  His symptoms were aggravated with prolonged sitting and standing.  The physical examination revealed low back spasm, tenderness about the right SI joint, pain-positive right straight leg raise and limited range-of-motion (ROM).  His gait was “slow movement favoring his left leg.”  His heel and toe walk was normal.  The diagnosis was LBP with L5-S1 herniated disc and his pain rating was “slight.”  At the VA Compensation and Pension (C&P) examination (6 months after separation), the CI reported intermittent “dull to sharp” LBP worse with prolonged sitting and or standing.  He denied numbness, weakness, or bowel/bladder complaints.  The VA physical examination revealed normal gait and posture.  ROM was mildly decreased with painful motion and Deluca was positive for pain, weakness, fatigue, and lack of endurance.  Back spasm or radicular pain component was not present.  He was neurologically intact.  The diagnosis was DDD of L5-S1 without radiculopathy.  The goniometric 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.

DOS 20050909
Thoracolumbar ROM
(Degrees)	MEB ~ 1.5 Mo. Pre-Sep
(20060320)	VA C&P ~ 6 Mo. Post-Sep
(20060320) 	
Flexion (90 Normal)	75	80	
Extension (30)	30	30	
R Lat Flexion (30)	23	30	
L Lat Flexion (30)	28	30	
R Rotation (30)	30	30	
L Rotation (30)	30	30	
Combined (240)	216	230	
Comment	back spasm; tenderness; +SLR; slow gait	painful motion; +Deluca;	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized similar codes of 5243 (intervertebral disc syndrome) and 5242 (degenerative arthritis) respectively; both citing limited motion.  Board members agreed that sufficient evidence of limited ROM was present to justify the rating of 10%, as well as the presence of localized tenderness and spasm not resulting in abnormal gait or spinal contour IAW §4.71a.  Board members also considered application of §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled” as seen on the VA examination as painful motion and positive Deluca; but probative value was highest for the MEB examination, as it clearly was time relevant to separation.  There are no available alternative or analogous coding options which are applicable and/or advantageous to the CI’s current 10% rating.  The Board additionally considered if the symptomatic lower extremity radiculopathy warranted an additional disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the LBP condition was appropriately recommended in this case.

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 10%, coded 5243 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131021, 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, AR20150001002 (PD201301815)

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