RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00245
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20060104

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Medical Specialist) medically separated for a low back condition.  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” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  He was given a higher rating for his condition by the VA. The 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 the 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:  

IPEB - Dated 20051012	VA* - (~1 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	20%	Bulging Disc, Thoracolumbar Spine	5299-5243	40%	20051130	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 15	
RATING:  20%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20060120 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.  The narrative summary (NARSUM) noted the CI gradually developed low back pain shortly after he entered active duty; this was further aggravated by a motor vehicle accident in June 2004.  Notes in the service treatment record indicated that at chiropractic treatment visits from February to April 2005, the CI had full painful thoracolumbar (TL) range-of-motion (ROM), with muscle spasms frequently present.  Lumbar magnetic resonance imaging in June 2005 noted disc bulges at L4-5 and L5-S1 with neuroforaminal stenosis (narrowing of the bony canal through which the spinal nerves exit) on the left at both levels.  Primary care and chiropractic notes from May 2005 to November 2005 noted tenderness to palpation (TTP) and full painful ROM, without muscle spasm.  The CI was evaluated by neurology and the assessment was lumbar neuritis (peripheral nerve irritation), without motor or sensory deficits and a neurosurgical review did not recommend surgery.  The CI was given a course of oral steroids.  An epidural steroid injection was recommended, but the CI declined at the time.  Despite treatment with multiple types of medication and therapy, the CI reported his back pain was getting worse and an MEB was initiated.

At the MEB exam 4 months before separation, the CI reported LBP with intermittent sharp pain into his lower extremities (LEs), with numbness and tingling (N/T) and decreased ROM.  The MEB physical exam noted decreased LE strength, graded 4+/5 bilaterally, without sensory deficits.  There was spasm of the low back and LE muscles.  Physical therapy measured ROM for the MEB on 6 September 2005 (with three repetitions) was flexion 40, 35, and 35 degrees (normal 90), with combined ROM of 100, 95, and 95 degrees (normal 240).  

At the VA Compensation and Pension (C&P) exam a month before separation, the CI reported constant LBP with radiation to the left knee and right buttock.  He reported that he could function with the pain with medication and the condition was not incapacitating.  The exam noted a normal posture with an abnormal gait, reported as “a limp, bilaterally.”  The CI did not use a cane or a crutch.  On exam, there was TTP, without muscle spasm.  The CI reported radiating pain with TL ROM, with flexion of 20 degrees, and combined ROM of 115 degrees.  There was normal LE strength, sensation, and reflexes and negative straight leg raise testing bilaterally.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 20%, coded 5299-5237 (analogous to lumbosacral strain) and the VA rated it 40%, coded 5299-5243 (analogous to intervertebral disc disease-IDS), citing the TL flexion noted at the MEB exam and the C&P exam respectively.  The Board considered the evidence in record which noted full ROM of the TL spine at all treatment visits in the STR when there was no muscle spasm, and even at times, full TL ROM despite the presence of muscle spasm.  At the MEB exam, TL flexion was 40 degrees, with muscle spasm noted, and at the C&P exam TL flexion was worse, without muscle spasm noted, but with an abnormal gait.  The Board agreed that the evidence supports a 20% rating according to the VASRD General Rating Formula for the spine based upon limited TL combined ROM or based upon “muscle spasm or muscle guarding severe enough to result in an abnormal gait or spinal contour.”  The Board next deliberated whether the flexion ROM of 20 degrees at the pre-separation C&P exam, which was only noted once in record, provided sufficient support for the 40% rating, specified as “ flexion of 30 degrees or less; or favorable ankylosis…”  However, there was no evidence at the C&P exam that the IDS had worsened - the exam noted no muscle spasm, negative SLR testing, and normal strength, sensation, and reflexes of the LEs and the CI reported that he could function with medication and the condition caused no incapacitation.  The Board concluded that the variable limited flexion documented in record was based upon muscle spasm and/or pain and there was no evidence that TL flexion was permanently or frequently limited to less than 30 degrees.  Therefore, Member consensus was that the disability due to the LBP was more nearly approximated by the 20% rating criteria than the 40% rating.  The Board reviewed to see if a higher evaluation than 20% was achieved coding with 5243 (Intervertebral disc syndrome) and rating based on incapacitating episodes, defined by the VASRD as bed rest prescribed by a physician and treatment by a physician.  However, there was no documentation in record of incapacitating episodes as defined.  The Board thus determined that the evidence supports a 20% rating for the disability due to the low back condition.  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 low back condition.

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the back condition as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  At the MEB and C&P exams, the CI reported intermittent bilateral LE pain and N/T, but strength, sensation, and reflexes were normal throughout the record.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and since no evidence of a motor or fixed sensory deficit associated with functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

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 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 20131229, 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, AR20160002873 (PD201400245)

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