RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00210
BRANCH OF SERVICE:	SEPARATION DATE:  20050516

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Military Police, medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain secondary to multilevel degenerative disk disease of the lumbar spine” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (see rating chart below) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the low back pain as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “I believe my rating should be reviewed for the following items: back, PTSD, ringing in ears.”  

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 low back pain condition is addressed below.  The Board acknowledges the CI’s implied contention for ratings of his cervical spine condition which was adjudicated as not unfitting by the PEB.  Disability compensation is provided for those conditions that cut short the service member’s military career.  Any contended condition judged by the Board as unfitting for continued military service will be recommended for a disability rating IAW the VASRD and based on the degree of disability evidenced at separation.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may remain eligible for future consideration by the Board for Correction of Military Records.  

RATING COMPARISON:  

IPEB – Dated 20050325	VA* - (~5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-Radiating Low Back Pain…	5299-5237	10%	Degenerative Disc Disease, Lumbar Spine	5243	10%	20051013	
Degenerative disk disease of the cervical spine	Not Unfitting	Degenerative Disc Disease, Cervical Spine	5242	10%	20051013	
Other x 0 (Not In Scope)	Other x 14	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060106 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Pain Condition.  Treatment records evidence that the CI sustained a back injury when he was struck by a vehicle in November 2003.  Treatment records were silent for back pain until November 2004 when the CI presented with acute low back pain.  He was treated with activity modification, a muscle relaxant, and anti-inflammatory medications.  X-ray evaluation of the lumbar spine performed 24 January 2005 demonstrated multi-level degenerative disk disease (DDD).  At the time of the narrative summary (NARSUM) the CI reported low back. Conservatively  treatment included physical therapy, activity modification, and medications.  The physical examination demonstrated normal gait and sensation; decreased thoracolumbar flexion, and negative radiculopathy testing.  A diagnosis of low back pain secondary to multilevel DDD of the lumbar spine was rendered.  At the VA Compensation and Pension (C&P) examination performed 5 months after separation, the CI reported constant low back pain, rated 3-4/10 with once a week flares to 9/10.  He took Tylenol or ibuprofen for pain.  He reported bilateral lower extremity weakness, numbness from back to toes, and numb feet with sitting.  The physical examination demonstrated pain limited thoracolumbar range of motion (ROM), no spasms, some guarding, and localized tenderness bilateral paraspinous muscles.  The neurologic examination was normal.  A diagnosis of DDD of the lumbosacral spine with lower extremity numbness, specifically feet was rendered.  

The Board directed its attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the unfitting low back pain condition at 10%; coded 5299-5237 (lumbosacral strain) and 5243 (intervertebral disc syndrome) respectively.  The Board considered whether the evidence supported a higher than 10% rating.  Prior to separation there was no evidence of thoracolumbar forward flexion less than 60 degrees or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour for a higher rating. Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed Board consensus was that a disability rating of 10% for the low back pain condition was appropriately recommended in this case.  

Cervical Spine Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that DDD of the cervical spine was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The DDD of the cervical spine was not profiled, and was not judged to fail retention standards. The condition was implicated in the commander’s statement.  Treatment records evidence that the CI initially presented with neck pain after being hit by a car in Iraq.  He was treated with activity modification and pain medication.  The records were silent for neck pain, but the CI continued to report pain in the right shoulder area and right upper extremity numbness.  Radiographic evaluation of the cervical spine demonstrated loss of the cervical lordosis and mild bilateral narrowing of the neuroformina at the C3-4 level. A physical therapy note evidenced pain limited motion.  All were reviewed and considered by the Board, there was no performance based evidence from the record that DDD of the cervical spine with right upper extremity numbness conditions 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 fitness determination for the DDD of the cervical spine contended conditions 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 low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended DDD of the cervical spine condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20131108, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160000424 (PD201400210)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA