RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01976
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150320
SEPARATION DATE:  20011024

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Information Systems) medically separated for a low back condition.  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 “L5/S1 degenerative disc disease,” “lumbar instability” and “left paracentral herniated nucleus pulposus” conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) combined the three MEB conditions, adjudicated “low back pain” as unfitting, and rated it 10% with application of DoDI 1332.39.  The CI requested a Formal PEB which affirmed the IPEB findings.  The CI made no further appeals and was medically separated with a 10% rating.  

CI CONTENTION:  The CI contends that his PEB rating was too low and that his condition continues to worsen to include neurological conditions.  His complete submission is at Exhibit A. 

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

Army FPEB – Dated 20010727	VA* – (~3 mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5295	10%	Left Paracentral Disc Herniation 	5293-5292	20%**	20020122	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20020506 (most proximate to date of separation (DOS))
**VARD dated 20040112 increased the rating to 40% effective 20030728.  

ANALYSIS SUMMARY:  

Low back pain (LBP).  This CI has had a long history of LBP.  In February 2000, magnetic resonance imaging (MRI) revealed degenerative disc disease, with small disc protrusion at L5-S1.  Lumbar discography was negative.  The CI has been treated with physical therapy, epidural steroid injections, and facet blocks.  Repeat MRI in December 2000 showed that the L5-S1 disc protrusion had increased in size, and he was diagnosed with herniated nucleus pulposus.  Electromyography was normal.  The possibility of spine surgery was discussed with the CI, but he declined to have surgery.  In spite of all treatment efforts, the LBP persisted and MEB was initiated.  The MEB narrative summary was dictated in February 2001.  At the MEB exam, the CI reported persistent LBP, with bilateral leg pain and paresthesias.  On physical examination (PE) of the lower back, there was some tenderness to palpation at multiple sites.  Straight leg raise was negative.  He was able to heel and toe walk, without any obvious difficulty.  Neurological exam (sensory and motor) was normal.  Lumbar range-of-motion (ROM) was decreased.  Flexion was limited, with his hands approximately 3 feet from the floor.  Extension was also limited.  Lateral bending and rotation were normal.  As noted above, the PEB found the LBP condition unfitting, and rated it 10%.

The CI was medically separated from service on 24 October 2001.  In January 2002, 3 months after separation, he had a VA Compensation and Pension (C&P) exam.  He reported moderate LBP with radiation to buttocks and legs, left greater than right.  His gait was normal.  PE of the lower back revealed moderate muscle spasm.  Straight leg raise was positive.  On ROM testing, forward flexion, backward extension, lateral flexion, and rotation equaled 20 degrees.  There was painful motion at the last degree of motion.  The CI reported that six times during the previous year, the back pain was so severe that he required injections of pain killer. With regard to functional assessment, his LBP kept him from playing sports, lifting his child, or doing activities with his children.  Based on the January 2002 C&P exam, the VA assigned a 20% disability rating for the back condition.

The Board directed attention to its rating recommendation based on the above evidence.  The VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation were modified on 23 September 2002 and then were changed again in September 2003.  The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment.  IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation from service, on 24 October 2001.  

The Board examined the data from the back examinations noted above.  Based on a thorough review of the evidence in the record, the Board determined that, at the time of separation, the CI’s back condition was best described as “moderate.”  There was insufficient evidence to support classifying the condition as “severe.”  After due deliberation, the Board determined that a disability rating of 20% was warranted.  The Board tried to find a path to a higher rating, using other codes which could be applied to the back condition.  The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a seriously disabling spine abnormality which would justify a higher rating.  Considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board unanimously recommends a disability rating of 20% for the 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.  As noted above, PEB reliance on DoDI 1332.39 was operant in this case, and the back condition was adjudicated independently of that instruction by this Board.  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, IAW the VASRD §4.71a which was in effect at the time of separation (October 2001).  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Low back pain	5292-5293	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131025, 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 XXXXXXXXXXXXXXXXXXXX, AR20150015861 (PD201301976)

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 20% 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:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA