RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01837
BRANCH OF SERVICE:  Army	BOARD DATE:  20140529
SEPARATION DATE:  20040905

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (42A/Human Resources 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic LBP condition 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 without neurologic abnormality” as unfitting, rated 10%, with likely application of VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborates no specific contentions and states “BACK.”

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 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 20040610	VA - (STR)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain without Neurologic Abnormality	5299-5237	10%	Degenerative Disc Disease of the Lumbar Spine at L5 (claimed as chronic low back pain)	5242	10%	STR	
Other x 0	Other x 1		
Rating:  10%	Combined Rating:  10%	
Derived from VA Rating Decision (VARD) dated 20041026 (most proximate to date of separation [DOS]).

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 Low Back Pain without Neurologic Abnormality Condition.  In September 2003, the CI sustained a low back injury during a parachute landing.  Lumbar X-rays and a CT scan were normal, but a magnetic resonance imaging study showed an annular tear with a broad based disc bulge at L5.  Ongoing pain did not respond sufficiently to pain medications, physical therapy (PT) or injections.  The CI declined a surgical option.

On 24 March 2004 (5.5 months prior to separation), the narrative summary (NARSUM) noted a complaint of daily, constant back pain even while performing sedentary activities in the office.  Exam showed painful motion and paraspinous muscle spasm.  There was no mention of gait or spinal contour.  An outpatient physiatrist (PM&R) on 14 February 2005 (5 months after separation) noted lumbar muscle spasm, but no abnormal gait or posture and no guarded movement.  At the VA Compensation and Pension (C&P) exam performed on 6 July 2005 (10 months after separation), the CI reported his LBP had worsened.  Prolonged sitting and standing, or walking more than 10 minutes caused the pain to worsen.  He sometimes used a cane and required assistance to get dressed due to back pain.  He claimed an inability to work due to his pain.  Examination showed a normal gait and normal spinal contour.  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 ~5 Mos. Pre-Sep	PM&R ~5 Mos. Post-Sep	VA C&P ~ 10 Mo. Post-Sep	
Flexion (90 Normal)	90 (100)	65	50	
Extension (30)	25	Not given	20 (22)	
R Lat Flexion (30)	30	30	30	
L Lat Flexion (30)	20	30	30	
R Rotation (30)	30 (35)	Not given	30	
L Rotation (30)	30		30	
Combined (240)	225	> 125	190	
Comment	+Painful motion	+Tenderness	+Painful motion	
§4.71a Rating	10%	10%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB cited combined ROM as justification for a 10% rating under an analogous 5237 code (lumbosacral strain).  Using the service examination findings, the VA initially assigned a 10% rating under the 5242 code (degenerative arthritis of the spine).  However, based on the C&P exam 10 months after separation, the VA later increased the rating to 20% (effective 9 months after separation) due to lumbar flexion greater than 30 degrees but not greater than 60 degrees.  The Board agreed that the respective ratings by the PEB and the VA were appropriate given the available ROM data.  The Board notes though that muscle spasm was observed by the NARSUM examiner; but additional VASRD criteria possibly supporting the next higher 20% rating, namely an abnormal gait or spinal contour resulting from that spasm, were not addressed in the exam.  The PM&R exam, performed 6 months after separation, also noted some spasm, but reported normal gait and posture.  The Board considered that the NARSUM and PM&R exams were closer to the time of separation and therefore were assigned higher probative value than the later C&P exam.  The NARSUM exam justified a 10% rating for combined ROM, while the PM&R exam warranted 10% for flexion.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the 10% criteria under that formula.  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 without neurologic abnormality condition.

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 LBP 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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131008, 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, AR20150001033 (PD201301837)

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