RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01865
BRANCH OF SERVICE:  Army	BOARD DATE:  20141114
SEPARATION DATE:  20051026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13B01/Cannon Crewmember) medically separated for chronic mechanical low back pain (LBP) with findings of degenerative disc disease (DDD).  The lower back pain 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 lower back condition, characterized as “chronic low back pain and herniated nucleus pulposus at L5-S1;” and a further diagnosis of “dyslipidemia” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated chronic mechanical LBP with findings of DDD, no neural impingement, muscular spasm, radiculopathy or deformity as unfitting, rated at 0%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI states:  “I was criticized by the VA nurse for trying to claim hearing loss, my knees, and shoulder and the pain level in my 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 lower back pain condition is addressed below; and, no additional conditions (the contended hearing loss, knees, and shoulder) 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 20050906	VA - (On date of-Separation – 20051026)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain	5237	0%	Lumbar Disk Disease With Spurring L4-L5	5243	10%	20051026	
Other x 1  (Not in Scope)	Other x 2	
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20051222

ANALYSIS SUMMARY:

Chronic Mechanical Low Back Pain Condition.  The CI experienced a history of infrequent problems with LBP, but the condition worsened in 2002.  Radiographic imaging (magnetic resonance imaging) in April 2005 noted DDD at L3-L5, and a herniated disc at L5-S1.  There was no associated surgical indication.  The MEB examination on 29 June 2005 (4 months prior to separation) reported a normal gait and no tenderness, muscle spasm or deformity.  Muscle strength was normal.  The narrative summary on 18 August 2005 (2 months prior to separation) noted a chief complaint of constant lower back pain and right leg numbness that occurred 3-4 times per week that was exacerbated by lifting, prolonged standing or sitting, and running.  At the VA Compensation and Pension exam performed on date of separation, the CI reported he did not use any medications or therapy for the back condition.  He could walk five miles and drive for 5 hours without stopping, but could not tolerate running.  Right leg numbness occurred occasionally.  Examination showed a normal gait and spinal contour, and no spinal tenderness or spasm.  Muscle strength was normal.

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)	MEB ~4 Mos. Pre-Sep	VA C&P ~ Day of Separation	
Flexion (90 Normal)	70 (70, 70, 72)	80 (82)	
Extension (30)	20 (23, 25, 20)	25 (23)	
R Lat Flexion (30)	30 (25, 28, 28)	30	
L Lat Flexion (30)	30 (30, 30, 30)	30	
R Rotation (30)	30 (40, 45, 45)	25	
L Rotation (30)	30 (40, 42, 42)	20	
Combined (240)	210	210	
Comment	+Painful motion	+Painful motion	
§4.71a Rating	10% (PEB 0%)	10% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 0% under the 5237 code (lumbosacral or cervical strain), while the VA assigned a 10% rating using the 5243 code (intervertebral disc syndrome).  The Board agreed that the ROM in evidence justified a 10% rating citing forward flexion greater than 60 degrees but not greater than 85 degrees; or, combined ROM greater than 120 degrees but not greater than 235 degrees.  Muscle spasm or guarding severe enough to cause abnormal gait or spinal contour was not present; therefore the next higher 20% rating was not supported.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would justify a compensable rating under that formula.  

The Board finally deliberated if additional disability was justified for right lower extremity radiculopathy.  The CI complained of intermittent right lower extremity numbness.  Examinations recorded normal muscle strength.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board therefore concluded that additional disability was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic mechanical LBP 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.  In the matter of the chronic mechanical LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.
RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Mechanical Low Back Pain	5237	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131022, 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, AR20150006978 (PD201301865)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA