RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00102
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150519
SEPARATION DATE:  20070610

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Nutrition Care Specialist) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (right shoulder pain) for PEB adjudication.  The Informal PEB adjudicated the back pain as unfitting, rated 10%, with likely application of AR 635-40.  The remaining condition was determined to meet medical retention standards.  An Administrative Correction was issued reflecting that the disability description was changed however, no rating changes were made.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI elaborated no specific contention in her 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 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:  

Admin IPEB – Dated 20070308	VA* - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Strain…	5237	10%	Chronic Strain, Thoracolumbar Spine	5237	10%	20070413	
Other x 1 (Not In Scope)	Other x 15	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20070619 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Low Back Pain.  The CI’s low back pain began after two motor vehicle accidents in November 2005.  Recurrent pain did not respond sufficiently to physical therapy, medication or chiropractic care.  Lumbar X-rays were normal, and magnetic resonance imaging showed mild disc bulging at two lumbar levels.  There was no surgical indication.  The narrative summary (NARSUM) on 7 December 2006 (6 months prior to separation) reported the CI was taking anti-inflammatory medication for pain.  Physical exam showed a normal gait and mild lumbar tenderness.  The exam was silent regarding painful motion, muscle spasm and spinal contour.  

At the VA exam on 13 April 2007 (2 months prior to separation), the CI reported her condition was present for eight months.  Spine stiffness, pain and weakness occurred with physical activity, but unprovoked pain could occur.  Medication and chiropractic care alleviated the pain.  She denied incapacitation due to back pain.  Examination showed a normal posture, spinal curvature and gait, without use of assistive device for ambulation.  There was no muscle spasm or tenderness.  Painful motion occurred at the extreme of flexion.  Repetitive motion did not result in additional limitation of motion.  The goniometric range-of-motion (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)	MEB ~6 Mos. Pre-Sep	VA Exam ~2 Mos. Pre-Sep	
Flexion (90 Normal)	90 (110, 110, 110)	70	
Combined (240)	200	220	
Comment		+Painful motion	
§4.71a Rating	10%	10%	
		  
The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbar strain), while the VA also assigned a 10% rating using the same code.  The Board agreed that a 10% rating, but no higher, was justified for flexion greater than 60 degrees but not greater than 85 degrees (per VA exam), or for combined ROM greater than 120 degrees but not greater than 235 degrees.  There was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and therefore the next higher 20% rating was not justified on this basis.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula.  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 chronic low back pain 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, PEB reliance on AR 635-40 for rating chronic low back pain was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the lumbar strain with chronic low back pain 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 20131223, 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, AR20150014337 (PD201400102)

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