RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01856
BRANCH OF SERVICE:  Army	BOARD DATE:  20140711
SEPARATION DATE:  20040710

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31B/Military Police) medically separated for chronic low back pain (LBP).  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 condition was characterized by the MEB as “chronic low back pain with lumbar degenerative disc disease” and it was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “gastroesophogeal reflux disease symptoms (not disqualifying)” for PEB adjudication.  The PEB adjudicated “chronic low back pain”…with “no neurological deficits “as unfitting, rated 10% citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be “medically acceptable.”  The CI made no appeals and was medically separated.

CI CONTENTION:  “My back problem caused pain and numbness in my right leg and right foot. These problems existed at the time of the PEB, but were not addressed.”

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 is addressed below.  In addition, the Board will consider any associated unfitting neurologic deficit as related to the CI’s chronic low back condition (to include the contended right leg and right foot pain and numbness).  The Board must emphasize that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.  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 20040514	VA - (16 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…no Focal Neurologic Deficit	5237	10%	DDD L4-L5, S1	5243	10%	20051122	
No MEB or PEB Entry	Radiculopathy to the Right Lower Extremity	5243-8520	10%	20051122	
Other x 1 (Not in Scope)	Other x 3	20051122	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20060126 (most proximate to date of separation [DOS]).  Ratings above effective 20050729 (~12 mos post separation).    
VARD 20120229 increased DC 5243-8526 to 20% effective 20111014. 

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The CI noted occasional right leg numbness after running in 2001 that would resolve within an hour.  In August 2002 while deployed in Afghanistan, he began to notice LBP due to increased lifting, extensive walking and load carrying in the absence of any injury.  In February 2003 he began to have severe LBP with right leg numbness during a physical fitness test which he was unable to pass.  Lumbar spine X-rays dated 1 April 2003 were normal.  A magnetic resonance imaging dated 15 April 2003 revealed multilevel disc disease and degenerative joint disease without frank herniation.  Medication, duty restriction and physical therapy afforded no relief.  On 31 July 2003, he was involved in a motor vehicle accident and sustained no significant injuries, but his back pain worsened.  In a phone call to the Health Care Information Line, the CI reported his right leg was going numb more frequently since the accident and the back pain became worse in frequency and more intense.  Pain management with two epidural steroid injections did not improve his back pain.  Neurontin (for nerve pain), a muscle relaxant and amitriptyline (for neuropathic pain) provided limited benefit.  Surgery was not recommended.  The commander’s statement dated 4 February 2004 indicated the CI had two temporary profiles during the evaluation and treatment of his condition.  The statement provided additional details of the 31 July 2003 automobile accident when the CI on his way home from physical therapy was struck in an almost head-on collision with a 14-wheel garbage truck.  Despite treatment, the CI was unable to meet duty requirements and issued a permanent L3 profile for LBP on 14 January 2004.  The CI’s condition prevented him from being able “to withstand extended physical hardships” as a military policeman must do.  The MEB narrative summary dated 18 March 2004 noted the CI reported constant LBP, which he rated as 5/10 with worsening to 8/10 with prolonged standing and sitting, any bending, lifting or twisting and with impact activities.  He had no improvement with rest, medical treatment, physical therapy modalities or pain clinic treatment.  He was able to perform all the activities of daily living.  The MEB physical exam noted the spine had normal contour.  There was tenderness to palpation at the midline from L3 through S1 and at the bilateral sacroiliac joints and mild tenderness of the paralumbar muscles.  Pain was reported in his posterior thigh with the straight leg raise test (this can indicate nerve root or disc irritation) while there was no pain with the distraction test or pain or tenderness with axial loading.  The CI had pain to one maneuver not normally expected to be painful, but the other four were normal.  The neurological examination was normal.  At a Combat Veteran physical examination performed on 13 October 2004, the CI noted the back pain was continuous whereas the right leg pain was intermittent.  Functionally, it was hard to run, sit or stand for long periods of time; however, his gait was normal as was the neurological examination.  The VA Compensation and Pension (C&P) exam dated 22 November 2005, performed over 16 months after separation and outside the 12-month window, assigned higher probative value for rating at separation.  The CI reported that he was working as a security guard and that he had “pain in mid-back, achiness, and radiation down right leg” and “complaints of radiating pain on movement into the right buttock.”  There was no muscle spasm or tenderness noted on examination of the thoracolumbar spine, but there was positive straight leg raise on the left and right.  “There were signs of nerve root irritation on provocative testing” to support both a motor and sensory deficit consistent with an L4 radiculopathy not present on prior examinations that were more proximate to separation.  The VA examination diagnosis was degenerative disc disease with radiculopathy L4-L5 and L5-S1.  The subjective factors were pain and radiation down right leg while the objective factors were neurological exam findings revealing loss of motor strength and loss of reflex ankle.  A lumbar spine series was normal on 23 November 2005.  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 ~14 Mo. Pre-Sep	MEB ~4 Mo. Pre-Sep	VA C&P ~16 Mo. Post-Sep	
Flexion (90 Normal)	Full without pain*	90 (90,90,90)	70	
Combined (240)	240	240	210	
Comment	*Although recorded as without pain, a linear representation of pain to worst pain was annotated 4.7 cm/10cm  + Radicular symptoms 	No ROM limited by pain annotated on the ROM table
Tenderness L3-S1 and SI joints
localized tenderness not resulting in abnormal gait=10%	DDD with radiculopathy L4-L5 and L5-S1	
§4.71a Rating	10%	0%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The Informal PEB that convened on 14 May 2004 found the CI unfit and rated his disability at 10% using code 5237 (lumbosacral or cervical strain) for the diagnosis of chronic LBP with minimal degenerative disc disease of the lumbar spine.  The VA, relying on the C&P examination, also rated the CI 10% for degenerative disc disease L4-L5, S1 (claimed as arthritis of the back) using code 5243 for intervertebral disc syndrome with incapacitating of less than 2 weeks during the past 12 months.  The Board considered the evidence.  The CI had a normal neurological examination, gait and spinal contour on the MEB examination.  The ROM was normal and spasm absent.  The Board found no route to a rating at the time of separation higher than the 10% rating adjudicated by the PEB.  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.

Contended Pain and Numbness in the Right Leg and Right Foot Condition.  The Board’s main charge is to assess the fairness of the whether the pain and numbness in the CI’s right leg and right foot was not unfitting since it was neither addressed by the MEB or referred to the PEB for adjudication, but was related to the unfitting condition of chronic lower back pain.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The pain and numbness in the right leg and right foot condition were not profiled, implicated in the commander’s statement, or judged to fail retention standards.  The two examinations which bracket separation (the MEB and Combat Veteran) both documented a normal neurological examination.  There was no explicit performance based evidence from the record that the pain and numbness of the right leg and foot significantly interfered with satisfactory duty performance such as a limp or inability to wear a boot on the right foot/ankle.  The Board noted no electro-diagnostic studies were performed suggesting no significant neuropathy was present.  Therefore, the Board determined that there was insufficient evidence to support the presence of a separately unfitting radiculopathy at separation.

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 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended pain and numbness in the right leg and right foot condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20131023, 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, AR20150001035 (PD201301856)

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