RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00181
BRANCH OF SERVICE: Army 	SEPARATION DATE:  20041214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Infantryman) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic lumbar back pain” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated “chronic lumbar back pain” as unfitting, but not rated.  The PEB further stated that the condition existed prior to service (EPTS) and was not permanently aggravated by service.  The CI non-concurred and Formal PEB (FPEB) rated the condition at 0%.  

CI CONTENTION: He was not evaluated for his knee condition.  His complete submission 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 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 Corr FPEB – Dated 20041130	VA* - (~14 Mos. Pre/Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	0%	Low Back Condition	5237	20%	20060206	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  0%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060419 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  A physical therapy note in the service treatment record (STR) dated 18 February 2004 indicated the CI was involved in a motor vehicle accident in October 2002 and fell in January 2003 (should be 2004 based on NCO and officer’s notes) at a readiness training center when his back pain started up again.  An MRI in October 2002 showed bulging discs without herniation.  Examination revealed a full active range-of-motion (ROM) with pain at the end range of flexion and an unremarkable neurologic exam.  Because of minimal improvement of symptoms, an X-ray series of the lumbar spine was performed in March 2004 and was essentially normal except the first sacral segment demonstrated spina bifida occulta (a congenital disorder of incomplete fusion of the vertebrae), while an MRI performed in April 2004 did not demonstrate any disc herniations or spinal stenosis, but did demonstrate a small Schmorl’s node (protrusion of a portion of a disc into the adjacent vertebra) in the inferior end plate of L1 and was an otherwise normal examination.  Multiple chiropractic treatments along with ultrasound were given between May and August 2004; however, pain occurred if the CI sat all day long.  He only took Advil (ibuprofen, a nonsteroidal anti-inflammatory drug (NSAID)) for pain relief.  Examination on 27 August 2004 revealed the CI’s back to be straight without spasm.  There was diffuse tenderness across L5-S1.  Flexion was slow to approximately 70 degrees and lateral bending was slow.  His gait was “a little straight.”  Motor strength and reflexes of the lower extremities were normal and straight leg raises caused “localized pain.”  Piroxicam (an NSAID) was prescribed and tramadol (an opioid-like medication) was considered for use.  

A permanent L3 profile was issued in April 2004 for chronic lumbar back pain with limitation of all military functional activities except wearing a protective mask and all chemical defense equipment.  Additionally, he could run only at his own pace and tolerance and could not do any sit-ups, flutter kicks, rucking, jumping, lifting more than 20 to 30 pounds per lift, and not wearing a flak vest or load bearing equipment.  At the MEB examination dated 6 May 2004, the CI indicated in the DD Form 2807-1 he had recurrent back pain or any back problem and noted he hurt his back after a fall in January 2004 and was being treated.  The MEB physical examiner noted on DD Form 2808 dated 6 May 2004 “Normal gait and movement—no objective signs of LBP.”  The commander’s statement dated 19 May 2004 indicated the CI fell from a roof during a training exercise in January 2004, which caused lower back pain.  Due to the CI’s medical condition, the commander was in agreement with the decisions of the CI’s doctors and the MEB.

The MEB narrative summary (NARSUM) dated 2 September 2004 noted the CI complained “I cannot sit for long periods of time without pain in my lower back up both sides of my spine and into my buttocks…” as well as morning pain and stiffness.  Examination on 7 May 2004 revealed no objective signs of low back pain.  Physical therapy ROM measures were extension 20, 20 and 18 degrees; flexion 70, 72 and 68 degrees; right lateral flexion 26, 26 and 27 degrees; left lateral flexion 25, 26 and 27 degrees; right rotation 20, 22 and 21 degrees; and left rotation 19, 20 and 18 degrees.  Despite maximal attempts at conservative treatment with physical therapy, chiropractic care, analgesics and profiling, the CI continued to have low back pain radiating to both buttocks.

At the VA Compensation and Pension (C&P) examination dated 6 February 2006, performed 14 months after separation, the CI reported he had no treatment, but did take Advil since separation.  He described bilateral lumbar discomfort on an intermittent basis depending on his activity level.  His pain averaged 4-5/10 (10 being the worst pain), but he had no bowel or bladder dysfunction, used no assistive device or brace, and had no incapacitating episodes in the prior 12 months.  Examination revealed normal symmetry of the spine with mild tenderness at the lumbosacral junction in the midline and mild tenderness diffusely in the lumbar soft tissues with negative straight leg raising (to determine nerve root irritation) and a negative Lasegue’s test (to determine an underlying herniated disk).  ROM measurements of the lumbar spine were flexion 60 degrees, extension 20 degrees, right and left lateral flexion 30 degrees each direction and rotation bilaterally 30 degrees each direction.  Discomfort occurred at 60 degrees flexion and 20 degrees extension.  There was no loss of motion or symptoms with repetition.  Neurologic examination was unremarkable.
The 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 ~3 Mo. Pre-Sep
	PT ~1 Mo. Pre-Sep
	VA C&P ~14 Mo. Post-Sep
	
Flexion (90 Normal)	(70)70/72/68	(80)80/82/81	60	
Extension (30)	(20)20/20/18	(20)15/17/16	20	
R Lat Flexion (30)	(25)26/26/27	(30)28/29/29	30	
L Lat Flexion (30)	(25)25/26/27	(30)29/29/30	30	
R Rotation (30)	(20)20/22/21	(25)22/29/25	30	
L Rotation (30)	(20)19/20/18	(25)25/26/26	30	
Combined (240)	180	210	200	
Comment	Normal gait and movement	Measurements with a bubble inclinometer; motions were not limited by pain	Straight leg raising negative; Lasegue’s negative; discomfort at 60 degrees flexion and 20 degrees extension; DeLuca negative	
§4.71a Rating	10% (PEB 0%)	10% (PEB 0%)	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5237 (Lumbosacral strain), while the VA assigned a 20% rating using code 5237 for the low back condition.  The Board sought a route to a higher rating and noted a ratable flexion of 70 degrees 3 months prior to separation, while a month prior to separation a bubble inclinometer was used for measurements; however the flexion measurement of 80 degrees would likewise warrant a 10% rating.  The VA examination performed 14 months post-separation was 3 months beyond the 12-month window IAW DoDI 6040.44 5.(4) for consideration of any variance with the PEB.  Although, the VASRD backdated the 20% rating to the day after separation, the record is silent on whether there were any intervening events or evidence to clarify or explain why there was a decrement of 20 degrees of flexion post-separation other than the fact that the CI was not receiving any treatment after separation.  The Board then discussed the probative value of the pre-separation versus post-separation examinations and ratings emphasizing the accuracy of the VA examination, albeit only 3 months beyond the 12 months IAW DoDI 6440.44.  The Board was unable to find another route to a higher rating in the absence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contours or unfavorable ankylosis.  The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  Functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% 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.  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 chronic low back pain condition, the Board by a majority vote recommends a disability rating of 20%, coded 5237 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 Low Back Pain 	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131231, 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, AR20160000152 (PD201400181)

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 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:

CF: 
(  ) DoD PDBR
(  ) DVA