RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00223
BRANCH OF SERVICE:  Army	BOARD DATE:  20150217
SEPARATION DATE:  20050401

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Heavy Truck Driver) medically separated for chronic low back pain (LBP).  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 back condition, characterized as “chronic low back pain due to degenerative disc disease,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic low back pain due to degenerative disc disease” as unfitting, rated 10% with probable application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Condition that i was discharged from the military on had a low percentage rate and the VA issued a larger amount of percentage rate.”

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 20050120	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP due to DDD	5242	10%	Degenerative Disc Disease 	5242	20%	20050611	
Other x 0 (Not In Scope)	Other x 2	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20051110 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  The CI presented with a 3-week history of LBP on 22 December 2003.  He denied antecedent trauma and was treated with medications.  At a chiropractic evaluation on 30 December 2003, he reported a 6-month history of LBP.  On examination, the range-of-motion (ROM) was full and the neurological evaluation normal.  He was again evaluated in the chiropractic clinic on 17 February 2004 and the ROM and neurological examinations remained normal.  An X-ray on 24 February 2004 showed some degenerative changes at L4.  A bone scan on 1 June 2004 was normal.  A magnetic resonance imaging on 28 August 2004 showed some degenerative joint disease and degenerative disc disease with annular tears (a tear in the disc) at L4-5 and L5-S1.  At a family practice appointment on 15 October 2004, the CI reported that his LBP was progressively getting worse despite treatment and that any activity aggravated it.  He was subsequently issued a L3 profile and entered into the MEB process.  At the MEB examination on 9 November 2004, 5 months prior to separation, the CI reported chronic LBP.  The MEB examiner documented tenderness over the lumbo-sacral spine with decreased ROM.  The narrative summary was accomplished a month later on 16 December 2004.  The CI reported that he could walk a mile before stopping from pain.  On examination, he had a normal gait and was in no distress.  He was tender over the lower spine and adjacent muscles.  Spasm was not recorded other than at full flexion which was painful.  Some loss of the normal lumbar curvature was present.  The neurological examination was normal and provocative testing for nerve root irritation was negative.  Right lateral flexion was reduced 5 degrees to 25 degrees, but the ROM was otherwise normal.

At the VA Compensation and Pension (C&P) examination on 11 June 2005, 2 months after separation, the CI reported that he worked as a truck driver and could not lift over 75 pounds.  He denied any incapacitation.  He limited heavy yard or garden work to an hour to avoid a flare.  On examination, there was no abnormal wear pattern on his shoes and he did not use an assistive device.  The gait was not recorded.  The ROM is recorded below.  The examiner noted that “When he has a flare-up of his lumbar spine problem, he loses 60 more degrees of flexion than he currently has.”  The neurological examination was normal and intervertebral disc syndrome was not present.  The mental health C&P a month later noted that he had worked as a long distance truck driver for 3 months but then stopped because it was too difficult to be away from friends and family.  No limitation from the back condition was recorded.

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)	MEB ~ 3 Mo. Pre-Sep	VA C&P ~ 2 Mo. Post-Sep	
Flexion (90 Normal)	90	90	
Combined (240)	235	225	
Comment	Low back spasms; no neurosensory changes	Pain, fatigue and lack of endurance with repetition	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the back condition as 5242 (degenerative arthritis of the spine), but rated it at 10% and 20%, respectively.  The VA rater noted that the examination supported a 10% rating, but increased the rating based on fatigue and lack of endurance with repetition as the examiner noted that the CI could lose 60 or more degrees of flexion in a flare.  The Board considered this evidence.  It noted that the CI stated that he had not lost work from his back condition and that he worked as a long distance truck driver until he changed his job due to considerations not related to the back.  He was able to work in the garden or yard for up to an hour.  His gait was normal and the ROM was near normal.  This information is not consistent with the limitations recorded at the C&P examination.  The Board considered the evidence and found no route to a rating higher than the 10% rating adjudicated by the PEB.  There was no evidence to support the presence of an unfitting radiculopathy at separation.  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 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 20131231, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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, AR20150011011 (PD201400223)

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		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA