RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00086
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20061110

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-7 (Automated Logistics) medically separated for chronic low back pain (LBP).  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 a Medical Evaluation Board (MEB).  The LBP condition 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,” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD) with possible application of AR 635-40.  The CI made appealed to the Formal PEB (FPEB) but later withdrew his request, and was medically separated.  

CI CONTENTION:  “His condition continues to worsen and negatively impact his daily activities.  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 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 

Admin Corr IPEB - Dated 20061030	VA* - (~10 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5299-5243	10%	Lumbosacral Strain with Degenerative Disease	5237	10%	20070425	
Other x 0 (Not In Scope)	Other x 14	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20071227 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  The record shows that the CI had a parachuting accident in 1992 with an ankle fracture, concussion, and low back pain (LBP), but that he was able to return to duty.  He presented with a history of chronic LBP on 22 February 2006, 9 months prior to separation, which was aggravated by the wear of protective equipment.  Mild degenerative joint disease (DJD) at L4, L5, and S1 was noted on an X-ray on 1 May 2006.  Painful motion and decreased flexion was noted that same day.  He was treated with duty restrictions, medications, and physical therapy (PT), but the pain persisted.  A repeat X-ray on 12 May 2006 showed anterior wedging consistent with an old compression fracture of the thoracic spine.  A primary care note on 30 May 2006 noted right sided weakness, but no atrophy and a normal range-of-motion (ROM).  An MRI of the lumbar spine the next day was normal.  In PT on 19 June 2006, he was noted to have a normal posture and gait.  The ROM was normal, but side bending painful.  The neurological examination was normal as well.  

The narrative summary (NARSUM) was dated 29 June 2006, 4 months prior to separation, and dictated by an orthopedic surgeon.  The CI reported that his LBP was aggravated in recent mobilization training.  His gait was normal other than an inability to heel walk secondary to prior ankle surgery.  The neurological examination was normal.  The ROM is charted below, but was for the lumbosacral region rather than thoracolumbar.  The examiner noted that a recent MRI (undated) showed degenerative disc disease (DDD) at L4-5 and L5-S1.  This is not consistent with the report in the record for the MRI done on 31 May 2006.  On 5 October 2006, a month prior to separation, tenderness and spasm of the lumbar back were present.  At a physical medicine visit on 8 January 2007, the ROM was noted to be limited and painful, but the neurological examination normal.  

At the VA Compensation and Pension (C&P) examination performed on 25 April 2007, 10 months after separation, the CI reported continued LBP, but denied incapacitation.  He used a brace for his knee and had an abnormal gait.  Tenderness was present, but spasm absent.  Provocative testing for nerve root irritation was present bilaterally.  Normal spinal curvature was present.  The ROM was reduced in flexion and extension.  Repetition did not cause further limitation in motion.  The neurological examination was normal.  Electrodiagnostic testing on 15 July 2008, 20 months after separation, was normal.  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)	PT ~6 Mo. Pre-Sep	MEB ~4 Mo. Pre-Sep	VA C&P ~10 Mo. Post-Sep	
Flexion (90 Normal)	WNL (All Planes)	45	70	
Combined (240)		185	210	
Comment	Side bending painful	Limited by pain; Lumbosacral ROM 	Limited by pain	
§4.71a Rating	10%	10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10%, coded 5299-5243 (analogous to intervertebral disc syndrome).  The VA rated that back at 10% as well, coded 5237 (lumbosacral strain) relying on the C&P examination.  While this examination supported the 10% rating adjudicated by the PEB, the MEB examination supports a 20% rating for limitation in motion, but the probative value is reduced for rating as flexion and extension are for the lumbosacral spine rather than the thoracolumbar spine (which is used by the VASRD).  The Board also considered if an unfitting radiculopathy was present at separation, but the neurological examinations were typically normal and electrodiagnostic testing after separation was normal.  The evidence does not support that addition of an unfitting radiculopathy at separation.  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 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 discussed above, possible PEB reliance on AR 635-40 for rating the LBP was operant in this case and the condition was adjudicated independently of regulation by this Board.  In the matter of the LBP 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 re-characterization of the CI’s disability and separation determination. 

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 XXXXXXXXXXXXXXXXXXX, AR20160000311 (PD201400086)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA