RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00326
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050917  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for a lumbar condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile (permitting alternate aerobic events) and referred for a Medical Evaluation Board (MEB).  The diagnosis “chronic low back pain” was forwarded as the sole submission to the Physical Evaluation Board (PEB) as medically unacceptable.  The Informal PEB adjudicated “chronic back pain without neurologic abnormality” as unfitting, rated 10% citing criteria of the AR 635-40 (B-24, f).  The CI made no appeals and was medically separated.   

CI CONTENTION:  “My lower back pain and leg pain still persist to this day.”  The applicant’s 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 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:  

 IPEB - Dated 20050721	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain w/o Neurologic Abnormality	5299-5237	10%	Degenerative Disc L4/L5	5243	10%	STR	
			Left Lower Extremity Radiculopathy a/w Above	8520	NSC	STR	
			Right Lower Extremity Radiculopathy a/w Above	8520	NSC	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 (NSC = Not Service Connected)	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20051109 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of an onset of low back pain (bilateral radiation to upper legs) associated with operational requirements during a 2003 deployment to Kuwait.  The condition was treated in-theater and increased with physical training and running after re-deployment.  Magnetic resonance imaging demonstrated disc disease (degenerative disc L4/5 with “minimal” bulging and no neural encroachment); but, there were no documented sensory or motor symptoms, and multiple normal neurological examinations (5/5 strength) were in evidence (minor exceptions without clinical significance).  The condition did not respond adequately to further conservative measures, surgery was not recommended, and an MEB was initiated.  There were multiple STR entries which noted grossly normal range-of-motion (ROM), although two early physical therapy (PT) entries noted limitations of flexion which normalized in subsequent entries.  There was ample STR confirmation of normal gait, but one entry which noted “decreased lordosis” (without corroborating spasm and guarding).  There were no STR entries contrary to any of these ratable features, or documentation of incapacitating episodes.

The NARSUM was conducted on 22 June 2005 (3 months pre-separation) and documented “frequent daily pain” rated as “moderate,” with radiation to the upper legs but no sensory or motor complaints; and, noted functional limitations with “heavy lifting...[and]...prolonged sitting or standing for a period longer than two hours or any sort of heavy physical activity.”  The NARSUM physical examination did not comment on gait, contour or other spinal physical findings; and, cited PT ROM measurements from a week earlier: flexion to 80 degrees (normal 90) and combined ROM of 205 degrees (normal 240), specifying painful motion.

Although not very temporally probative to the Board’s recommendation (as above) and not considered in the VA’s rating proximate to separation, a VA Compensation and Pension (C&P) examination from 27 February 2007 (16 months post-separation) documented a normal gait and spinal contour with flexion to 70 degrees and combined ROM of 210.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5237 (lumbar strain), although influenced by AR 635-40, was consistent with VASRD §4.71a criteria for the Service ROM evidence and other ratable findings.  The VA’s 10% rating under code 5243 (intervertebral disc syndrome) cited the same evidence, and denied service connection for claimed bilateral radiculopathies “because the medical evidence of record fails to show that this disability has been clinically diagnosed.”  There is no ROM evidence supporting a rating higher than 10%, insufficient evidence of gait or spinal contour abnormality in support of a 20% rating, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.   Members considered whether additional rating could be recommended for the bilateral radicular symptoms at separation.  Functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  Since there were no objective motor or sensory deficits in this case, members agreed that neither the requisite functional link to fitness nor the presence of a VASRD ratable deficit were supported by the evidence; thus, additional rating on this basis was not justified.  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 of the lumbar spine 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.  As discussed above, PEB reliance on AR 635-40 for rating was operant in this case and it was adjudicated independently of that regulation by the Board.  In the matter of the lumbar spine 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 20140108, 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, AR20160002062 (PD201400326)

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