RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01816
BRANCH OF SERVICE:  Army	BOARD DATE:  20140701
Separation Date:  20040602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (62E/Tank System Mechanic) medically separated for chronic back pain without a specific injury or neurologic abnormality.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) 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 with spondylolytic spondylolisthesis Grade 1 L5-S1 with degenerative disc disease L4-5 with dehydration and bulge,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic back pain without neurologic abnormality” as unfitting, rated 10%, citing criteria and with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB but later withdrew his request and was medically separated.

CI CONTENTION:  The CI attached a two page statement to his application which was reviewed by the Board and considered in its recommendations.

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 20040205	VA - (4.5 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain w/o Neurologic Abnormality	5299-5237	10%	Degenerative Disc Disease(DDD) with L5-S1 Spondylolisthesis and Broad Based Disc Bulge at L4-5; Lumbar Spine	5239	10%	20040123	
No Additional MEB/PEB Entries	Other x3	
Rating:  10%	Combined:  10%	
Original VARD not contained in the evidence

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 VASRD standards, based on ratable severity at the time of separation.
Chronic Back Pain without Neurologic Abnormality Condition:  The CI developed a traumatic low back pain (LBP) in 2002.  He underwent physical therapy (PT) and the pain resolved; however, the pain reoccurred in March 2003.  He was seen in the emergency room (ER) for an acute onset of LBP and reported pain with lifting and rated the pain at 4 to 5 out of 10 with 10 being the worst.  He denied any leg weakness or bowel or bladder dysfunction.  The physical exam findings were palpable back spasms T12-L2 in the paraspinal muscles and tight hamstrings.  The examiner prescribed a temporary profile for a week, a non-steroidal anti-inflammatory drug (NSAID) and a muscle relaxant.  He was evaluated by PT who noted that the LBP symptoms were worse with sitting, lifting, standing, walking and lying down.  The physical exam findings were tenderness along the lumbar spine, range-of-motion (ROM) flexion 50% and extension 25%-50% with a posture that demonstrated a mild shift to the left.  The CI required ER treatment for LBP in July and August 2003 and reported pain which radiated to his right leg.  A lumbar spine magnetic resonance imaging demonstrated a broad-based disc bulge at L4-5 and Grade I spondylolisthesis of L5 on S1.  He was seen in the ER twice in November 2003 for acute LBP and paresthesia’s to the right leg and was prescribed a narcotic medication.  The orthopedist documented chronic LBP and tender to palpation in right lumbar paraspinal muscles.  The examiner recommended a cane for ambulation and to start the MEB process.  The orthopedist reported that an electromyogram (EMG) was normal.  The commander’s statement noted that the CI’s back condition precluded him from performing critical field tasks, his condition further interfered with his MOS duties and adversely affected his unit’s readiness.  The MEB narrative summary (NARSUM) exam approximately 5 months prior to separation documented that the CI was seen in the ER on 3 October 2003 and given intravenous morphine for acute LBP and that he still had occasional moderate LBP.  The MEB NARSUM physical exam findings are summarized in the chart above.  The CI was given a permanent L3 Profile for LBP.  The VA Compensation and Pension (C&P) exam approximately 4 months prior to separation documented daily back pain rated four to five on a pain scale, which was aggravated by prolonged standing, sitting or using a broom and interfered with his mechanic work.  He reported occasional muscle spasms and a dull back pain which would become a stabbing pain with aggravation.  He tried multiple NSAIDS without relief and could not lift anything greater than 30 pounds.  The CI reported a “dead weight” feeling in his right lower leg when his back flared pain was rated at 3 to 4 but could go as high as 10 when the back was aggravated and that his leg gave out a few times.  The VA C&P physical exam findings are summarized in the chart below.  The CI required ER evaluation in May 2004 for LBP and was noted to use a cane for ambulation.  The examiner documented pain was 8 out of 10 and the CI was given a NSAID injection for acute pain.

There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation as summarized in the chart below.

Thoracolumbar ROM (Degrees)	MEB ~5 Mos. Pre-Sep	VA C&P ~4.5 Mos. Pre-Sep	
Flexion (90 Normal)	40*	90(95)	
Combined (240)	135	155	
Comment	*ROM appeared to be measured as isolated lumbar flexion (not thoracolumbar) with normal being 60 degrees; Walks, sits, stands slowly; No spasm or tenderness; Normal motor/sensory/reflexes; Pos. painful motion; Neg. Waddell’s	Normal gait & posture; Pos. tenderness to palpation & painful motion; Patellar reflexes slightly decreased bilaterally; No spasm	
§4.71a Rating	20% (PEB 10%)	10%	

The Board considered whether an additional rating could be recommended under a peripheral nerve code for the associated sciatic radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications, and no motor weakness was in evidence.  An EMG done was normal.  There is thus no evidence of a separately ratable functional impairment from the residual radiculopathy and, the Board cannot support a recommendation for an additional disability rating on this basis.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic back pain without neurologic abnormality condition as 5299 analogous to 5237 lumbosacral or cervical strain and rated at 10%.  The VA coded the degenerate disc disease with L5-S1 spondylolisthesis and broad based disc bulge at L4-5 lumbar spine condition as 5239 spondylolisthesis or segmental instability and rated at 10%.  The general rating Formula for diseases and injuries of the spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The MEB NARSUM exam documented a “lumbar” forward flexion at 40 degrees.  That exam did not meet the VASRD standard thoracolumbar ROM measurement required for rating under §4.71a.  The VASRD standard ROM measurements are for the thoracolumbar spine while the MEB NARSUM appeared to document isolated lumbar spine ROM (normal for isolated spine ROM is 60 degrees).  The VA C&P exam documented thoracolumbar forward flexion at 95 degrees.  The Board adjudged that the VA C&P exam was closer to separation and met the VASRD measurement requirements; therefore, the Board assigned it a higher probative value.  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 back pain without neurologic abnormality condition and that no peripheral nerve condition be added.

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 without neurologic abnormality 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 20130929, 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, AR20150001005 (PD201301816)

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