RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00269
BRANCH OF SERVICE:  Army 	BOARD DATE:  20141107
SEPARATION DATE:  20070730

SUMMARY OF CASE:  The evidence of record indicates this covered individual (CI) was an active duty SPC/E-4 (98X/Signal Intelligence Specialist) medically separated for low back pain.  The back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “low back sprain”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501; no other conditions were submitted by the MEB.  The PEB adjudicated “chronic low back pain…” as unfitting, rated 0% with possible application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “These injuries have significantly decreased the quality of my life and my ability to provide for myself and my family.  I’ve had to quit multiple jobs due to my health issues, and also had to file a bankruptcy this year.  (I am rated 70% by the VA.) ”   

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 condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application or otherwise outside the Board’s defined scope of review remain eligible for future consideration by the Board for Correction of Military Records.  The Board acknowledges the CI’s information regarding the significant impairment his service-connected condition continues to impose, but must emphasize that the Disability Evaluation System has neither the role nor authority to compensate for later severity or complications of conditions that caused medical separation.  That role and authority is granted by Congress to the Department of Veteran Affairs (DVA), operating under a different set of laws.

RATING COMPARISON:  

Service IPEB – Dated 20070502	VA - (1 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	0%	Chronic Lumbar Spasm w/ DDD	5010-5237	10%	20070831	
Other x 0 In Scope			
Combined:  0%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20080303.   

ANALYSIS SUMMARY:  

Low Back Condition.  The narrative summary (NARSUM) notes the CI developed back pain during basic training in 2005.  This was exacerbated by a motor vehicle accident in 
27 February 2006 with radiation of pain in both legs to the knee.  A magnetic resonance image (MRI) of the back dated 28 February 2006, revealed early degenerative disc disease and bony changes with multiple small discs with slight impingement (touching) without compression of the spinal nerve roots.  During a clinic evaluation dated 11 April 2006, range-of-motion (ROM) of the lower back revealed forward flexion of 54 degrees and extension of 18 degrees (normal 90 degrees and 30 degrees, respectively) with pain only on lateral rotation.  On the orthopedic spine examination dated 27 July 2006, tenderness to palpation was present in the extreme lower back.  ROM of the back was “full” without mention of painful motion and sensory exam was normal.  The examiner opined “based on his presentation and diffuse nature of his pain, it is very hard to determine the cause”.  No surgery was recommended.  Nerve conduction studies (performed same day as orthopedic exam), demonstrated a sensory and motor neuropathy in the low spine.  This was confirmed on repeat testing on 7 February 2007.

On evaluation dated 25 August 2006 (performed 5 months before the NARSUM and 11 months prior to separation); the CI reported neither numbness nor weakness in his legs.  On exam no tenderness was present on palpation of the spine.  The lower spine and posture were described as “abnormal”.  Back pain was initiated by motion.  Motor and sensory exams were normal.  At the MEB examination (DD Form 2808) dated 31 October 2006 (9 months prior to separation); neither tenderness to palpation [of the spine] nor sign/symptom of motor weakness was recorded.  No physical examination was included in the NARSUM exam dated 12 February 2006 (6 months prior to separation).  At a physical therapy exam dated 6 March 2007 (5 months prior to separation), gait was normal.  Examination of the spine revealed increased tone in the spinal muscles without description of spasm.  ROM was 48 degrees flexion and 20 degrees extension, both with painful motion and active muscle guarding.  Rotational ROM was normal.  

At the VA Compensation and Pension (C&P) examination performed a month post separation; the CI reported continued back pain that radiated to legs.  During that time the CI had completed his certification in Arabic languages and was employed in a coffee shop.  He reported no “incapacitation” from the back condition in the last year.  On physical examination, the CI’s gait was normal.  He was noted to “move freely around the office, gets on the couch easily and can touch his toes without problem”.  Exam of the spine revealed “slight” tenderness and spasm of the back.  ROM of the back was normal and was done “quite freely” with “certain amount of pain on motion, but nothing much at all”.  No Deluca signs were present.  Motor and sensory exams were normal.

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and the VA rated the back condition under code 5237, (lumbosacral strain) IAW §4.71a: the PEB rated 0% citing ROM “slightly” reduced by pain and the VA, rated at 10% citing a “certain amount of pain with motion”.  Under code 5237, a rating of 10% requires forward flexion of the lumbar spine greater than 60 degrees, but not greater than 85 degrees.  The next higher rating of 20 % requires flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees.  The next higher rating of 40% requires flexion of the lumbar spine of 30 degrees or less.

The Board considered a rating under ROM, IAW §4.71a.  The Board noted the presence of both normal and reduced ROM evaluations in the STR and the disparity between the findings of the NARSUM (5 months prior to separation) and the VA examination (a month post separation).  The Board unanimously gave higher probative value to the VA’s C&P examination in its recommendations, given its proximities with the date of separation, which must remain as the Board’s definitive benchmark.  Based on this data, the Board unanimously agreed that no recommendation under ROM criteria could be made.  The Board agreed that the record reasonably supportd a rating of 10%, but no higher, for painful motion IAW §4.59.  The Board considered a rating IAW §4.123 (neuritis, peripheral nerve).  The Board agreed there was a peripheral neuropathy in this case but it was not ratable as a peripheral nerve impairment   since no motor weakness was present, sensory symptoms had no functional implication and radiation of pain was subsumed under the back rating IAW §4.71a.  The Board considered a rating under code 5243, (incapacitating episodes/intervertebral disc syndrome).  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician.  The service treatment record documents no incapacitation under this definition in the 12 months period prior to the MEB examination.  The Board agreed that no rating could be recommended under this code.  The Board found no other appropriate codes for consideration and no pathway to a rating higher than 10% for the back condition.  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 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.  In the matter of the back condition, the Board unanimously recommends a disability rating of 10%, coded 5237-5003 IAW VASRD §4.71a and §4.59.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION: The Board recommends modifying the case determination as follows, effective the date of medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain Condition	5237-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140107, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
	           XXXXXXXXXXXXXXX
	           President
	           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, AR20150004343 (PD201400269)

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						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA