RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01825
BRANCH OF SERVICE:  Army	BOARD DATE:  20140528
SEPARATION DATE:  20040921

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (42L/Administrative Specialist) medically separated for chronic low back pain (LBP), without neurologic abnormality.  The 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 U3/L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The chronic LBP without neurologic abnormality condition, characterized as “unfitting” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic LBP, without neurologic abnormality” as unfitting, rated 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “My medical conditions have worsen a I have required medical intervention for pain relief.  I am also not able to work overtime hours due to the physical impairment.  I am currently on FMLA for this injury.  I am receiving PT @ my local VA hospital.”

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 chronic LBP without neurologic abnormality 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 20040712	VA - (3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, without Neurologic Abnormality	5299-5237	10%	Lumbar Degenerative Disc Disease (claimed as chronic low back pain)	5243-5242	10%	20040622	
No Additional MEB/PEB Entries		 	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20041027 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  It is a fact, however, that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs (DVA).  The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Low Back Pain Condition.  The CI first reported LBP with radiation into his right leg in March 2003 (during deployment) after an acute “twisting” type injury to his low back while lifting heavy material.  His initial physical therapy evaluation was normal excepting tenderness about the lumbar spine.  Radiologic tests in September 2003 revealed degenerative disc disease at L5-S1 with herniation.  Neurosurgical consultation deemed the CI’s condition was non-surgical and proceeded with epidural steroid injections which were unsuccessful for prolonged pain relief.  Having normal muscle tone and strength coupled with a normal gait, neurosurgery recommended work restrictions and self-paced physical fitness.  Orthopedics concurred and also suggested a non-surgical course of treatment.  Despite multiple treatment modalities, the first temporary profile was issued in May 2003 which became permanent in February 2004.  Multiple entries in the service treatment record (STR) documented normal gait and grossly normal or modestly impaired thoracolumbar range-of-motion (ROM) and, there was no documentation of any periods of incapacitation.  There were frequent entries of pain extending into the right leg with corresponding objective evidence of a painful straight leg raise.  His LBP persisted throughout the balance of his career.  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 20040921
Thoracolumbar ROM
(Degrees)	Neurosurg ~11 Mo. Pre-Sep
(20031010) 	MEB ~ 4 Mo. Pre-Sep
(20040513) 	VA C&P ~ 3 Mo. Pre-Sep
(20040622) 	
Flexion (90 Normal)	normal spine ROM	60	70	
Extension (30)		10	30	
R Lat Flexion (30)		22	30	
L Lat Flexion (30)		20	30	
R Rotation (30)		30	30	
L Rotation (30)		30	30	
Combined (240)		172	220	
Comment	antalgic gait	painful motion; tenderness	painful motion; tenderness;	
§4.71a Rating	10% 	20%	10% 	

At the MEB examination (4 months prior to separation), the CI reported LBP radiating down the back of his right hip and leg; worse in the morning and less as the day progressed.  Examination revealed a normal gait and no evidence of erythema, edema, ecchymosis or spinal deformities.  The exam was silent regarding muscle spasm.  Muscle strength and deep tendon reflexes of the lower extremities were normal.  The DD Form 2807 listed “No” for the presence of numbness or tingling.  The diagnosis was chronic LBP with lumbosacral (stable) herniation and right sciatica.  The examiner assessed his pain as “slight” and “constant.”  At the VA Compensation and Pension examination (3 months prior to separation), the CI reported a constant LBP described as “oppressing” and “cramping” that radiates to his right thigh; made worse by activity and stress.  Pain scale was 8/10.  The examiner noted, “At the time of pain, he can function with medication” and “The condition did not result in any time lost from work.”  The examination revealed tenderness about the lumbar spine.  There were no spasms present or evidence of radicular pain on movement.  Deluca findings were negative.  The examiner noted, “There are no signs of intervertebral disc syndrome present.”  Within 3 months of the CI’s neurosurgical examination indicating normal spine ROM, the pain management examiner (on two separate occasions) functionally assessed the CI under the Department of Health and Human Services (DHHS) work restriction category of “medium” stipulating the ability to lift/carry 25-50 pounds, bend or stoop frequently, stand or walk for 30-60 minutes with a 5 minute rest, and may work 8 hours per day, 40 hours per week.
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 (in various combinations) similar codes of 5237 (lumbosacral strain), 5243 (Intervertebral disc syndrome) and 5242 (degenerative arthritis), respectively; both citing painful motion and additional limited motion by the VA.  Board members first agreed that sufficient evidence of painful motion was present to justify the rating of 10% IAW VASRD §4.59, as well as the presence of localized tenderness 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,” and clearly, the persistence of painful motion was such the case in this condition.  Both charted pre-separation examinations supported compensable limited ROM parameters.  Member consensus was that the VA examination appeared more consistent with STR outpatient notes, comported with the recommended DHHS restriction guidelines, and was more reflective of the anticipated severity suggested by the clinical pathology.  The Board therefore relied more heavily on the VA measurements; and, accordingly, agreed that a rating higher than 10% was not justified.  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 LBP condition.  The Board additionally considered if the residual right-sided sciatic radiculopathy warranted additional disability rating; but, members agreed that the requisite link of the neuropathy with functional impairment was not in evidence and, the Board cannot support a recommendation for an additional disability rating on this basis.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and noted above.

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.  As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the LBP condition was likely operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic LBP 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 recharacterization 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, AR20150001007 (PD201301825)

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