RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00117
BRANCH OF SERVICE:  Army	BOARD DATE:  20140822
SEPARATION DATE:  20051123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (11B/Infantryman) medically separated for chronic subjective back pain, status post (s/p) lumbar discectomy without neurologic abnormality.  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 chronic subjective back pain, s/p lumbar discectomy without neurologic abnormality  condition, characterized as “intravertebral disc degeneration, s/p L5-S1 hemilaminotomy and microdisketomy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions.  The Informal PEB adjudicated “chronic subjective back pain, s/p lumbar discectomy without neurologic abnormality” as unfitting, rated 10%.  The remaining conditions were 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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting chronic subjective back pain, s/p lumbar discectomy without neurologic abnormality condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20051107	VA - (11 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain, Status Post Lumbar Discectomy Without Neurologic Abnormality	5243	10%	Recurrent Herniated Disk, Status Post Laminotomy and Microdiscectomy, Lumbar Spine	5243	20%/100%/20%	20061018	
Other x 0 (Not in Scope)	Other x 3 (Not in Scope)		
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20060712 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Back Pain Condition.  Review of the available service treatment record showed that in 2003 the CI reported low back pain (LBP) for 6 years and that it had recently worsened without any specific precipitating events.  Magnetic resonance imaging (MRI) showed degenerative disc disease with disc herniations at L4-5 and L5-S1.  Although discussed as an option at that time, surgical intervention was not pursued.  He was treated with epidural steroid injections and did well until 31 January 2005 when he stepped into a deep hole while deployed to Iraq.  He experienced immediate LBP with radiation to both lower extremities (left greater than right), but was able to complete the 8-mile patrol.  MRI showed a moderate to large left disc herniation at L5-S1 and a small paracentral herniation at L4-5.  Due to persistent severe radiating pain to the left lower extremity, an L5-S1 hemi-laminotomy and microdiscectomy was performed on 20 May 2005.  A follow-up MRI performed in June 2005 showed a small right paracentral disc herniation at L4-5, which possibly compressed the right L5 nerve root; and post-surgical changes without evidence of L5-S1 disc herniation.  The CI continued to complain of low back and left buttock pain.

At the narrative summary evaluation on 14 July 2005 (4 months prior to separation) the CI reported that his pain and mobility improved after surgery.  However, he continued to experience back pain most of the day.  Aggravating factors included prolonged standing and walking, but he was able to run, walk and bike at his own pace and distance.  Physical exam showed a normal gait and some tenderness over the surgical area.  At the MEB separation exam on 27 July 2005, the CI reported LBP that radiated to the left buttock and thigh.  Physical exam showed decreased, but unmeasured, range-of-motion (ROM) of the lumbar spine.  At the physical therapy exam on 19 September 2005 (2 months prior to separation), pain limited motion was noted to occur on flexion, left lateral flexion and rotation (see chart below).  Increased pain from motion “quickly returned to baseline.”  All measurements were repeated three times.

At the VA Compensation and Pension (C&P) exam on 13 February 2006 (3 months after separation) the CI complained of severe back and posterior left thigh pain and reported that further surgery was planned.  He required a cane for ambulation.  He could not pursue full-time college studies because he could not sit long enough in class and he stopped participation in recreational activities.  Physical examination revealed the use of a cane, although gait was not specifically described.  Pain was noted at the extremes of ROM.  A repeat MRI reportedly showed evidence of a herniated disc at L4-5 with encroachment of the right nerve root and at L5-S1.  A VA hospital discharge summary indicated that the CI underwent microdiscectomy at L4-5 on 9 May 2006 for “a new herniated disk.”

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 ~2 Mos. Pre-Sep	VA C&P ~ 3 Mos. Post-Sep	
Flexion (90 Normal)	90**	40	
Extension (30)	30**	10 (12)	
R Lat Flexion (30)	30 (35)**	15	
L Lat Flexion (30)	30**	15	
R Rotation (30)	30 (45)	10	
L Rotation (30)	30 (40)	10	
Combined (240)	240	100	
Comment	+Painful motion	+Painful motion	
§4.71a Rating	0% or 10%* (PEB 10%)	20%	
	     		*Conceding §4.59 (painful motion)
	      		**Inclinometer used for ROM measurement 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome).  Using the same code, the VA rated the condition at 20% effective the day after separation.  The VA’s rating was temporarily increased to 100% effective the date of surgery in May 2006 (i.e. 6 months after separation).  Although ROM on the service exam was normal, Board members agreed that the PEB’s 10% rating was reasonably conceded with application of the VA Schedule for Rating Disabilities (VASRD) §4.59 (painful motion); and that the C&P ROM findings supported the VA’s 20% rating (forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or, the combined ROM of the thoracolumbar spine not greater than 120 degrees).  Board members debated the evidence just elaborated and concluded that at the time of separation the clinical picture was most accurately depicted by the 10% rating.  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 subjective 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.  In the matter of the chronic subjective 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 20131205, 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 AR20150006845 (PD201400117)

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