RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00065
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Multichannel Transmission Operator/Maintainer) medically separated for a back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for an Medical Evaluation Board (MEB).  Chronic low back disc herniation L5-S1 was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated chronic back pain as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated.

CI CONTENTION:  His conditions were not addressed and continue to worsen.  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 condition 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 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 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:

Service IPEB – Dated 20060430	VA* - (3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Low Back Strain…	5237-5243	20%	20060120	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20060803 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Back Condition.  The CI first presented for low back pain (LBP) on 29 March 2005 when he reported injuring his back lifting a 85 pound bag 5 months earlier.  His examination was normal including gait and range-of-motion (ROM).  He was given duty restrictions which remained in place until separation.  An X-ray on 20 April 2005 was unremarkable other than a right curvature which was possibly due to position.  An MRI on 3 May 2005 showed a herniated disc at L5-S1.  The CI was evaluated in neurosurgery on 7 June 2005 for pain radiating to the right foot.  The surgeon noted that the disc did not impinge the S1 nerve root although the CI had numbness in a right S1 distribution.  The CI was referred to physical therapy, but his symptoms persisted.  On 19 October 2005 the neurological examination was normal.  At the MEB narrative summary (NARSUM) examination, dated 5 November 2005, 6 months before separation, the CI reported that his symptoms persisted despite PT and medications.  Surgery had been recommended, but the CI declined.  On examination, his gait was mildly abnormal secondary to pain, but he could both heel and toe walk.  The spine was tender in the lumbar region.  Provocative testing for nerve root irritation was positive bilaterally.  The neurological examination was normal although sensation was not recorded.  The ROM was reduced by pain and is charted below.

At the VA Compensation and Pension (C&P) examination dated 20 January 2006, 3 months before separation, the CI reported no time lost from work or incapacitation.  Daily activities were limited in that he could not vacuum, take out the trash, garden, or mow the lawn.  Gait and posture were normal.  The back was tender, but spasm absent.  Provocative testing for nerve root irritation was positive bilaterally.  The neurological examination was normal.  The ROM was reduced by pain and is charted below.  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)	Rehab ~5 Mo. Pre-Sep	MEB ~6 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	35	45	40	
Combined (240)	125	135	180	
Comment	Limited by pain	Limited by pain	DeLuca positive	
§4.71a Rating	20%	20% (PEB 10%)	20% (VA 20%)	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5299-5237 (Analogous to lumbosacral strain).  The VA rated the back at 20%, coded 5237-5243 (Lumbosacral strain – intervertebral disc syndrome).  The ROM on all three examinations supports a 20% rating.  The Board found no route to a higher rating.  The Board also noted that the neurological examinations proximate to separation were normal and concluded therefore that an unfitting radiculopathy was not present at separation and could not be recommended for additional disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 20% for the back condition coded 5243.

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 back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5243 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:

CONDITION	VASRD CODE	RATING	
Chronic Back Pain	5243	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131218, 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 XXXXXXXXXXXXXXXXXX, AR20160000329 (PD201400065)

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:

CF: 
(  ) DoD PDBR
(  ) DVA