RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00115
BRANCH OF SERVICE:  Army	BOARD DATE:  20141219
SEPARATION DATE:  20080222

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Unit Supply Specialist) medically separated for lumbosacral strain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (sleep apnea and generalized anxiety disorder) for PEB adjudication.  The Informal PEB adjudicated “lumbosacral strain” as unfitting, rated 10% with likely application of the US Army Physical Disability Agency pain policy.  The remaining conditions were determined to be not unfitting.  A Revised PEB was conducted which increased the lumbosacral strain rating to 20% with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Right Hip Down Leg/See Attached in Line of Duty DA Form 2173.”  The CI attached 3 pages including a DA Form 2173, Approval Memorandum and Delegation of Authority Memorandum to his application which was reviewed by the Board and considered in its recommendations.  His complete submission, with attachments, 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 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:

Service Revised IPEB – Dated 20080507	VA* - (~.7 Mos. Post-Separation) -	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	20%	 DDD, Thoracolumbar Spine	5242	10%	20080314	
			Radiculopathy, Right Lower Extremity, due to Intervertebral Disease	8799-8720	10%	20080314	
Other x 2  (Not in Scope)	Other x 6	
Combined/Rating:  20%	Combined:  80%	
*Derived from VA Rating Decision (VARD) dated 20080721 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  The Board agreed that the back, hip and leg pain were all part and parcel of the back condition and will be discussed together.

Lumbosacral Strain with Right Hip and Right Leg Pain.  The narrative summary (NARSUM) noted the CI developed low back pain with radiation of pain to his hip and right lower leg in September 2005.  Magnetic resonance imaging of the back obtained in March 2006 revealed broad based bulging discs without herniation or compression of the spinal nerves.  On a neurosurgical evaluation on 13 March 2006, motor, sensory and reflex exams were normal.  Surgical intervention was not recommended.  On a physical therapy (PT) evaluation on 5 February 2007, the CI’s gait and spinal contour were normal with spinal tenderness, but no back muscle spasm was present.  Spinal ranges-of-motion (ROM) findings on this exam are summarized in the chart below.  Nerve conduction studies obtained on 5 March 2007 revealed no evidence of a lumbar spinal neuropathy.  At the MEB NARSUM physical exam performed in April 2007, 10 months prior to separation, motor strength and reflexes in the lower extremities were normal.  Spinal ROM findings on this exam are summarized in the chart below.  On a repeat PT evaluation on 25 July 2007, 7 months prior to separation, motor strength in the lower legs was equal.  Spinal ROM findings on this exam are summarized in the chart below.

At the VA Compensation and Pension (C&P) exam performed approximately a month after separation, the CI reported back pain, right hip and intermittent numbness and tingling in his toes which lasted up to 5 minutes when it occurred.  He denied bowel and bladder difficulties.  On examination, gait was described as having a “slight limp” when rising from a chair with resolution within 6 feet of ambulation.  Motor, sensory and reflex exams were normal.  Examination of the hip revealed normal ROM.  Routine x-rays of the hip were normal.  Spinal ROM findings on this exam are summarized in the chart 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 below.

Thoracolumbar ROM
(Degrees)	PT ~13 Mo. Pre-Sep
(20070205)	MEB ~10 Mo. Pre-Sep
(20070405)	PT.~7 Mo Pre-Sep
(20070725)	VA C&P ~1 Mo. Post-Sep
(20080314)	
Flexion (90 Normal)	20	40 	75 with pain	90 with pain	
Extension (30)	20	30	10	10	
Comment	No spasm; gait/contour normal	Motor/reflexes normal	Motor in legs equal	Motor,sensory, reflexes normal	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5237, (lumbosacral strain) citing a forward flexion of 40 degrees on the NARSUM evaluation.  The VA rated the condition 10%, coded 5242, (arthritis of the spine), citing normal ROM with pain on the C&P evaluation.  Under both codes, IAW §4.71a, a rating of 10% requires forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees.  The next higher rating of 20%, requires flexion of the lumbosacral spine greater than 30 degrees, but not greater than 60 degrees.  The next higher rating of 40%, requires flexion of the lumbar spine of 30 degrees or less.  Additionally the VA adjudicated an additional 10% rating, coded 8720 (incomplete paralysis, sciatic nerve/mild), IAW §4.124, citing a history of sensory defects in the right lower leg.  Under this code, a rating of 20% requires the condition to be “moderate.”  The Board noted the significant improvement in ROM findings between the NARSUM and C&P evaluations and presumed this to be related to discontinuance of military activity and continued therapy.  The Board gave higher probative value to the C&P exam in its recommendations given its closest temporal alignment with the date of separation.  Based on this evaluation, the Board consensus was that no rating recommendation under ROM criteria could be made except with application of painful motion IAW §4.59 (painful motion).  The Board agreed that the evidence at the time of separation did not render a rating higher than the 20% issued by the PEB.

The Board considered a rating IAW §4.124 (neuralgia, peripheral nerve).  The Board agreed there was no peripheral neuropathy in this case since no motor weakness was present, sensory symptoms had no functional implication, radiation of pain to the hip and leg was subsumed under the back rating IAW §4.71a and nerve conduction studies demonstrated no neuropathy.  The Board consensus was that the hip pain, with normal ROM and X-rays was part and parcel of the back/neuropathy condition.  The Board considered a rating under code 5243, (incapacitating episodes/intervertebral disc syndrome).  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician.  The record documented no incapacitation under this definition in the 12-month period prior to the MEB examination.  The Board agreed that no rating could be recommended under this code.  The Board found no other back appropriate codes for consideration and no pathway to a rating higher than 20% issued by the PEB.  Thus, the Board recommends no change in the PEB adjudication for the back 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.  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 back 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 20131227, 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, AR20150008498 (PD201400115)

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