RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00126
BRANCH OF SERVICE:  Army	BOARD DATE:  20141203
SEPARATION DATE:  20070720

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPT/O-3 (13A00/Field Artillery) medically separated for a low back pain (LBP) condition.  It could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty although he was cleared for alternate physical fitness testing.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “herniated nucleus pulposus and numbness behind both legs,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded three other conditions.  The Informal PEB adjudicated chronic radiating LBP as unfitting, rated at 0% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION: “Rating was based on range of motion, of which I have a full range of motion.  However, to correct my injury, back surgery would be required (spinal fusion), which would have led to a reduced range of motion, and a disability rating > 30%. (continued on back) However, spinal fusion was refused by the doctors that treated me.  They stated that they did not want to operate on a 25 - year olds and that the fusion would lead to disk degeneration and eventual further fusions.  Since my discharge, I have had numerous ER visits due to my injury, and have sought out other forms of treatment and pain management.”

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 IPEB – Dated 20070607	VA* - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating LBP	5243	0%	IVDS, Lumbar Spine	5243	20%	20071128	
Numbness behind both Legs	Not Unfitting	LLE Radiculopathy	8521	10%	20071128	
		RLE Radiculopathy	8521	10%	20071128	
Other x 3 (Not in Scope)	Other x 5	
Combined:  0%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20080114 (most proximate to date of separation)

ANALYSIS SUMMARY: 

Chronic Radiating Low Back Pain.  At a family practice visit dated 9 January 2004, the CI reported a 3-year history of LBP which was aggravated by activity but not related to any specific trauma.  He had normal range-of-motion (ROM) and a normal neurological examination.  These remained normal at evaluations on 7 December 2005 and 17 August 2006.  A magnetic resonance imaging performed on 20 October 2006 was significant for a small herniated disc at L4-5 with impingement of the thecal sac (the tissue surrounding the spinal cord).  At a 29 January 2007 physical therapy (PT) evaluation, his LBP was increasing; however, the ROM and neurological examinations remained normal.  Three weeks later, the ROM was decreased 50% at a follow up PT evaluation although the CI reported improvement in his LBP with treatment.  The neurological examination was normal.  At the MEB Medical examination (DD Form 2807/DD Form 2808) on 2 April 2007, the CI reported a back condition and numbness behind the knees for three years.  This was also documented on the physical examination although no further details were recorded.

At the MEB narrative summary evaluation (approximately 3 months prior to separation), the CI reported that he first noted LBP in October 2003.  He had been able to attend pre-Ranger training and complete Air Assault School in 2006.  On examination, he had “no hesitancy on standing or walking.  He has no problem with removing his shoes or socks in a normal and, apparently, painless manner.”  Spasm and atrophy were absent and the neurological examination normal.  Formal ROM measurements on 25 April 2007 exceeded VA normal values except for extension.  These are charted below.  The examiner noted that there was no gait abnormality secondary to spasm or guarding.

At the VA Compensation and Pension examination (approximately 4 months after separation), the CI reported that he was able to walk for two miles or 30 minutes and used no aids for ambulation.  He had been limited to desk work for 1 to 2 days the previous month after he “threw his back out” lifting a hitch out of his truck bed.  On examination, his gait was “even and steady.”  The spinal curvature was normal.  Spasm was not recorded.  The ROM was reduced at baseline and after repetition.  The motor examination was normal.  The ankle reflex was reduced on the left and sensation was diminished bilaterally, right slightly worse than the left.  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 for MEB 3.1 Mo. Pre-Sep	VA C&P 4 Mo. Post-Sep	
Flexion (90 Normal)	90	70 (50 with repetition)	
Combined (240)	225	180 (DeLuca 155 rounded)	
Comment	Extension reduced from pain	DeLuca positive	
§4.71a Rating	10%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back at 0% using code 5243 (intervertebral disc syndrome (IVDS)).  The VA also coded the back using code 5243, but rated it 20%.  The ROM on the MEB examination supports a 10% rating.  It is consistent with the other ROM evaluations in evidence with the exception of one PT treatment session and is the most proximate examination to separation.  The VA examination supports a 20% rating after a reduction in ROM with repetition.  However, this examination followed a post-separation injury, reducing its probative value to determine the disability at separation.  The Board noted that the gait and contour were normal and spasm absent.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the LBP condition.

Contended PEB Conditions.  The Board also considered the numbness behind both legs.  Although not specifically contended by the CI, the VA rated him for a radiculopathy secondary to the back condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the numbness was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Electrodiagnostic testing on 18 April 2007 showed no neurological abnormality.  The neurological examination was usually recorded as normal.  The Board observed that the CI was able to complete air assault training despite the numbness.  The MEB determined that it met retention standards; it was not profiled and was not specifically cited by his commander.  There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB not unfitting determination and so no additional disability rating is recommended.

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 LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the (implied) contended numbness condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Radiating Low Back Pain…	5243	10%	
COMBINED	10%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20131230, 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, AR20150007082 (PD201400126)

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 to 10% 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			     

CF: 
(  ) DoD PDBR
(  ) DVA