RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01900
BRANCH OF SERVICE:  Army	BOARD DATE:  20140515
SEPARATION DATE:  20040310

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard SPC/E-4 (62J10/General Construction Equipment Operator) medically separated for 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 LBP condition was forwarded as “medically unacceptable” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated LBP as unfitting, rated 0%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 LBP condition is addressed below; 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 20031205	VA - (8 Mos. Post-Separation)  -	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5237	0%	LBP DDD and DJD	5242	20%	20041130	
No Additional Entries in Scope			
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20041229 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain Condition. The CI had LBP which was aggravated on 14 July 2002 when he was awoken by another soldier for guard duty.  He was treated with physical therapy, duty restrictions and medications without resolution sufficient for return to duty.  A magnetic resonance imaging (MRI) performed on 30 December 2002 was significant for mild degenerative disc disease (DDD) in the lumbar spine without nerve root or cord impingement.  The action officer noted that this is not unusual in someone in his 50’s and, in fact, the MRI was read as also normal as were the X-rays.  His pain persisted and he was referred for electrodiagnostic testing on 5 August 2003.  These were normal as was the neurological examination.  He was also noted to have full passive range-of-motion (ROM) which was pain free.  No atrophy was present.  The narrative summary was dated 9 September 2003.  The CI reported constant back pain which radiated into his right lower extremity (RLE).  As noted, testing was normal and excluded a radiculopathy.  He reported that the LBP increased with activity, but denied numbness, tingling or incontinence.  He could no longer mow his lawn or lift over 50 pounds.  On examination, there was no tenderness or spasm.  Provocative testing for radicular pain was negative.  His gait was normal.  He had full ROM in both active and passive testing.  The neurological examination was normal.  Painful motion was not recorded.  At the MEB examination on 25 November 2003, 3.5 months prior to separation, the CI reported chronic LBP with occasional radiation into the RLE.  The examiner checked that the spine and neurological examinations were normal.  The VA Compensation and Pension (C&P) examination was performed almost 9 months after separation.  The CI reported continued symptoms, but was able to fish and hunt and drove a truck part-time when his back was not “bothering him too much.”  He reported a trial of two steroid injections.  He did not use an assistive device or wear a brace.  He stated that he could walk several miles, but typically stopped at a mile to mitigate his pain.  On examination, the gait was normal other than right lateral flexion and no assistive device was in use.  It was noted that with repetition, forward flexion was reduced approximately 50%, but this was apparently an estimate rather than a measurement as no degrees were given.  The normal lumbar curve (lordosis) was reduced, but there was neither spasm nor atrophy present.  The neurological examination was normal and provocative testing for radicular irritation was negative.  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.

Thoracolumbar ROM
(Degrees)	PMR ~7 Mo. Pre-Sep	MEB ~ 6 Mo. Pre-Sep	VA C&P ~ 09 Mo. Post-Sep	
Flexion (90 Normal)	FROM	FROM	90 	
Comment	Motion pain free	Nml gait and neurological examination	Flexion: ~50% decrease with repetition	
§4.71a Rating	0%	0%	10/20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the back condition 5237, lumbosacral strain, and rated it at 0% for a normal examination.  The VA coded it as 5242, degenerative arthritis of the spine, but rated it at 20% citing the estimated 50% reduction in flexion observed by the C&P examiner.  The Board considered the evidence.  The X-rays were normal and the MRI was read as normal albeit showing minimal DDD which the action office opined was not unusual for his age.  The neurological examinations and electrodiagnostic testing were normal.  The gait was normal; spasm and atrophy absent.  The Board was unable to find additional information proximate to separation.  The VA did subsequently lower the back rating to 10%, but years after separation and well outside the 12-month window assigned 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 back 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 back 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 20131003, 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, AR20150001306 (PD201301900)

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