RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00101
BRANCH OF SERVICE:  ARMY	BOARD DATE:  20150406
SEPARATION DATE:  20070912

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a traditional drilling National Guard E-6 (Senior Mechanic) medically separated for chronic back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain (LBP)…” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (hyperlipidemia) for PEB adjudication.  The Informal PEB adjudicated the back pain as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  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 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:

IPEB – Dated 20070718	VA* - (~3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain...	5243	10%	Lumbosacral Strain	5237	10%	20070618	
Other x 1 (Not In Scope)	Other x 11	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20070717 (most proximate to date of separation (DOS).

ANALYSIS SUMMARY:

Chronic Back Pain Condition.  The service treatment record indicated that the CI first developed back pain in February 1998 after completing “…a long run at a fast pace.”  He was diagnosed with a back strain and treated with restrictions, medication, and “back school” via physical therapy (PT).  The case file was absent records from late 1998 to mid-2005.  In July 2005, he again endorsed back pain after heavy lifting that was associated with left leg pain.  A magnetic resonance image conducted on 17 October 2006 revealed lumbosacral degenerative disc disease (DDD) with bilateral nerve sleeve compression.  On 26 March 2007 he underwent a left-sided L5-S1 laminotomy and discectomy.  Two months after surgery, the CI had significant improvement in his preoperative leg pain and the diagnosis specifically noted the absence of a myelopathy (radiculopathy type presentation).  A permanent profile was filed on 31 May 2007 due to persistent back symptoms and a MEB was initiated.

At the narrative summary examination on 21 March 2007; 6 months prior to separation the CI endorsed daily LBP which required narcotic pain medicine “at least once a week.”  The physical examination (PE) revealed lumbar tenderness with decreased and painful motion.  Motor and sensory parameters were normal.  His diagnosis was chronic LBP due to DDD requiring surgical intervention.  The commander’s statement noted the CI’s inability to perform his required MOS duties and the permanent profile listed chronic LBP as the sole diagnosis.  There was no documentation of VASRD defined periods of incapacitation.

At the VA Compensation and Pension examination on 18 June 2007; 3 months prior to separation, the CI reported a constant LBP described as crushing, burning, aching, sharp, sticking, and cramping in nature.  Pain scale rated as 9/10 and travels down his left leg into his toes.  The examiner noted that at the time of pain he can function with medication.  His PE revealed a normal gait with “no evidence of radiating pain on movement.”  There was lumbar tenderness present without spasms.  There was decreased and painful motion present.  A non-quantified sensory deficit of the top of the left foot was noted and a mild motor weakness of 4/5 was present with extension of the left foot and great toe.

The Board directed attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition slightly differently, they both utilized similar codes of 5243 (Intervertebral disc syndrome) and 5237 (lumbosacral strain) respectively; rating at 10% and each citing limited and or painful motion.  Board members agreed that sufficient evidence of limited ROM and or painful motion was present to justify the service rating of 10%, as well as the presence of localized tenderness not resulting in abnormal gait or spinal contour IAW §4.71a.  Board members acknowledged that the ROM parameters near the time of separation clearly indicated a compensable rating of 20% under VASRD §4.71a criteria.  Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of20% for the chronic back pain condition.

Additionally, Board members considered the finding of sensory loss and mild weakness within the left foot as an additional ratable radiculopathy if found to be separately unfitting.  The established principle for fitness determinations is that they are performance based.  The minimal degree of neuro-related symptoms in this case brought forth no adverse functional concerns of a separately ratable impairment (with fitness implications) from a residual radiculopathy; and therefore, the Board cannot support a recommendation for an additional disability rating on this basis.  Any pain component of the radiculopathy was subsumed under the general spine rating as specified in §4.71a.

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 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%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131228, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD Physical Disability Board of Review

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, AR20150012764 (PD201400101)

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 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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA