RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02002
BRANCH OF SERVICE:  Army	BOARD DATE:  20140925
SEPARATION DATE:  20051220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Army SSG/E-6 (42A30/Human Resource Specialist) medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The back pain condition characterized as “degenerative disc disease of the lumbar spine” and “degenerative disc disease of the cervical spine” 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 with pain on all parameters of range of motion” as unfitting, rated at 10% IAW Veterans Affairs Schedule for Rating Disabilities (VASRD).  The “degenerative disc disease of the cervical spine” was determined to be not unfitting.  The CI non-concurred but waived a formal hearing and was medically separated.

CI CONTENTION:  “Due to the deteriating condition of my back and neck. I think the initial rating was to low. I was referred to a specilalist to discuss back surgery before I was discharged.” [sic]

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 and contended not-unfitting neck pain condition are addressed below.  Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Corrections of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20051018	VA* - (6 Days Pre-Sep) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	10%	Chronic Lumbosacral Strain	5237	10%	20051214	
DDD, Cervical Spine	Not Unfitting	DJD, Cervical Spine	5242	10%	20051214	
Other x 0 (Not in Scope)	Other x 3 (Not in Scope)	20051214	
Combined:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20060307 (most proximate to date of separation)

ANALYSIS SUMMARY:  

LOW BACK PAIN Condition:  The narrative summary (NARSUM) performed on 14 September 2005 (5 months prior to separation), noted the CI had a 4-year history of lower back pain.  The NARSUM noted the CI continued to have back pain that limited his functional status despite numerous medications, therapy and specialty service consultations.  He was evaluated by neurosurgery but was not considered a surgical candidate at that time.  The NARSUM documented that the CI non-concured to an elective surgery option and to having an epidural steroid injection.  The CI’s MOS Medical Retention Board dated 28 April 2005, concluded the CI would undergo an MEB.  During the NARSUM examination, the CI reported severe back pain; reported his pain level averaging 6/10 and that he took Ultracet (narcotic medication) for pain relief.  The MEB examiner noted the CI reported problems with sitting or standing for long periods and occasional numbness and tingling (site omitted).  Physical examination was unremarkable.  A magnetic resonance imaging study revealed a L4-5 left lateral disc protrusion.  A physical therapy range-of-motion (ROM) evaluation obtained on 9 September 2005 (approximately 4 months prior to separation), provided a “trunk” flexion ROM of 40 degrees and combined ROM measurements of 180 degrees; with all ROM limitations due to pain.  No other examination details were provided.  

At the VA Compensation and Pension (C&P) exam performed on 13 December 2005 (6 days prior to separation), the CI reported it was difficult for him to sit for long periods of time.  He denied that he was unable to care for himself or that his condition affected his ability to performed daily activities.  The CI stated that his pain did affect recreational activities such as unable to work in the yard, as he would prefer.  There were no incapacitating episodes during the last 12 months.  During the lumbar spinal examination, the examiner found no spasm or tenderness, his straight leg raises bilaterally were negative, strength in all extremities was normal 5/5, normal deep tendon reflexes, normal sensation and normal gait.  ROM flexion was 85 degrees with pain, extension of 10 degrees without pain, left and right lateral flexion of 35 degrees, without pain; left and right rotation 45 degrees without pain.  ROM was not additionally limited by pain, fatigue, weakness, or lack of endurance.

The Board directs attention to its rating recommendation based on the above evidence.  The Board considered VASRD diagnostic code 5237 (lumbosacral strain) used by both the VA and the PEB, rated at 10%.  The Board carefully evaluated the evidence and considered the probative value of the two ROM examinations.  The physical therapy exam dated 9 September 2005 (approximately 4 months prior to separation), measured the “trunk” ROM, but did not specify if a thoracolumbar spine measurement was conducted nor did the exam specify if a goniometer or inclinometer was utilized.  The Board also considered the VA C&P examination dated 13 December 2005 was more proximal to the date of separation and provided goniometric ROMs of the thoracolumbar spine.  The Board therefore agreed that the VA C&P examination had greater probative value.  

The VA C&P exam documented a combined ROM of the thoracolumbar spine was 215 degrees which was greater than 120 degrees and not within the 20% rating criteria.  There was no report of muscle spasm, no guarding evidence severe enough to result in an abnormal gait; no abnormal spinal contour such as scoliosis, reversed lordosis, abnormal kyphosis, or reports of incapacitating episodes for a possible higher rating in the CI’s favor.  There were reports that the CI experienced occasional numbness and tingling, but none of these aforementioned symptoms were considered compensable with alternate or additional codes resulting in a higher rating.  Symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, were subsumed under the General Rating Formula for Diseases and Injuries of the Spine.  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 low back pain condition.  

Neck Pain Condition:  The Board’s main charge is to assess the fairness of the PEB’s determination that the neck pain condition was not unfitting.  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 treatment record for the neck pain condition was reviewed by the action officer and considered by the Board.  The permanent level three profile (L3/U3) designated for the back pain did not include neck pain, which is customarily specified when an upper extremity permanent level three designator (U3) is used.  There was no performance-based evidence in the record that neck pain condition significantly interfered with satisfactory duty performance.  The commander’s statement remarked the CI performed the duties related to his military occupational specialty in an outstanding manner.  There was no other evidence, such as prolonged absence from work, urgent or emergent medical care, or prolonged hospitalizations due to the neck condition that could otherwise indicate unfitness.  Since the neck pain condition was not profiled nor implicated in the commander’s statement, it was not judged to fail retention standards.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB’s fitness determination for the neck pain condition and so no additional disability rating is recommended.

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 low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended neck pain condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20131028, 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, AR20150004747 (PD201302002)

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