RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXX 	CASE: pd-2014-00332 
BRANCH OF SERVICE:  Army 	SEPARATION DATE: 20060422 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Health Care Specialist) 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 (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the LBP condition as unfitting, rated 0%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated. 

CI CONTENTION:  “The applicant contends his back condition and that his condition required daily medication.  His 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 20060228	VA*  ~3 Yrs., 11 Mos. Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain ...	5299-5237	0%	Lumbar Degenerative Disk Disease	5242-5243	10%	20090217	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 (equals SC, NSC & deferred)	
RATING:  0%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20090917 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  
 
Lumbar Spine Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of a diagnosis of lumbar disc disease dating to 2004, which was exacerbated by a strain injury in Iraq in 2005 and eventually required medical evacuation.  Although the CI complained of some left lower extremity (LLE) radiation, magnetic resonance imaging confirmed mild herniation at L5/S1 without significant neural impingement; and, there are multiple STR entries recording normal neurologic findings (5/5 strength) with none to the contrary.  Neurosurgery opined that surgery was not indicated and the back pain did not improve sufficiently to meet MOS demands.  There is STR documentation of normal gait and spinal contour, the absence of spasm, and grossly normal range-of-motion (ROM) (without comment regarding painful motion).   There were no contrary STR entries and no documentation of incapacitating episodes.  

The NARSUM was conducted 25 January 2006 (3 months pre-separation) and documented intermittent pain rated “2-3/10 on best day and worse day 9/10,” exacerbated by “walking and lifting.”  The NARSUM physical examination imported findings from the MEB physical (DD Form 2808) which was normal for spine and neurological findings, and also cited normal neurologic findings from a recent neurosurgery consult. The NARSUM physical therapy (PT) ROM measurements noted 90 degrees flexion (normal) and 240 degrees combined (normal), but specifically annotated “low pain level with end range.”  

There was no temporally probative post-separation evidence; but, the VA rating examination four years after separation documented full-time employment without occupational limitations; and, recorded normal gait and neurological findings, with normal ROM in all planes except for extension to 25 degrees (normal 30).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating analogous to 5237 (lumbar strain) invoked the normal ROM from the MEB PT examiner; but, members agreed that the annotation of painful motion from that same evidence warranted application of VASRD §4.59 to achieve the minimum compensable rating of 10%, and the NARSUM evidence reasonably supports §4.40 (functional loss) in defense of a 10% rating.  There is no evidence of abnormal gait for a 20% rating, and no evidence of incapacitating episodes to support a higher rating under that formula.  Members also considered additional rating for the LLE (sciatic) radiculopathy, but the pain component is subsumed under the general spine rating IAW §4.71a and there is clear evidence that there was no ratable sensory or motor impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the lumbar spine condition; proposing code 5243 (intervertebral disc syndrome) for its clinical compatibility.

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 lumbar spine condition, the Board unanimously recommends a Service disability rating of 10%, coded 5243, IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:    

CONDITION	VASRD CODE	RATING	
Lumbar Disc Disease 	5243	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140107, with attachments
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 XXXXXXXXXXXXXXXXXXX, AR20160000201 (PD201400332)

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:

CF: 
(  ) DoD PDBR
(  ) DVA