RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00350
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-4 (Infantryman) medically separated for low back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  Mid thoracic mechanical back pain and chronic mechanical low back pain due to bulging discs and facet disease were forwarded to the Physical Evaluation Board (PEB)  IAW AR 40-501.  The MEB also identified and forwarded hypertension for PEB adjudication.  The Informal PEB adjudicated thoracolumbar back pain as unfitting, rated 10%.  

CI CONTENTION:  His injury was much worse than the Army believed.  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 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 20070521	VA* – (~1 Mo. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar Back Pain	5242	10%	Intervertebral Disc Syndrome…	5243	20%	20070521	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20071030 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the back condition began prior to entry into the service, and approximately 4 years prior to referral for MEB.  Back pain began following a motor vehicle accident (MVA) where the CI was an unrestrained passenger.  A lumbar spine MRI showed no evidence of a herniated disc or significant spinal stenosis (narrowing).  Thoracic and lumbar spine X-rays showed mild L5-S1 disc space narrowing.  A cervical, thoracic, and lumbar spine MRI showed mild to moderate posterior disc bulges (L3-L4, L4-L5, L5-S1), mild facet degenerative changes, and evidence of cervical muscle spasm.  At a neurosurgery consultation the CI complained of lower and upper back pain for several years following the MVA.  He denied radiation, numbness, tingling, weakness, and leg complaints.  Pain was partially relieved by lying supine (face up).  The physical exam documented that the CI ambulated without assistance and without difficulty.  Strength, sensation, and deep tendon reflexes (DTRs) were normal and pathologic reflexes were absent.  The diagnosis listed mechanical low back pain, and given the lack of radicular (irritation or injury of a nerve root) symptoms, no surgical intervention was indicated.  The NARSUM, 3 months before separation, recounted the history and interventions.  The CI complained of having 1-2/10 pain 1 day a week prior to activation.  Following activation, daily heavy exercises, and load bearing (wearing IBA), he began having constant 2/10 pain with frequent “twinges” to 8/10 pain.  Symptoms had not resolved with conservative management (activity modification, physical therapy, chiropractic care and medications).  The physical exam documented the “… gait was awkward in that he walked with short shuttling steps.”  The back exam revealed tenderness over the T8 to T10 and L3 to S1 vertebrae with no muscle spasms.  Seated straight leg raise (SLR) tests (assess sciatic nerve root compression by a herniated disc) were negative bilaterally.  The goniometer measured thoracolumbar ROM is listed in the chart.  Sensation and DTRs were normal and pathologic reflexes were absent.  The diagnosis listed mid thoracic mechanical back pain that existed prior to service and was service aggravated.  A lumbar spine X-ray was unremarkable.

The VA Compensation and Pension (C&P) exam documented subjective factors of lumbar pain and left radicular pain.  The CI had no bowel, bladder, or erectile dysfunction.  The physical exam showed an abnormal gait with use of a cane.  The spine exam revealed no ankylosis (joint stiffening or immobility) and normal curvatures, symmetry, and symmetry of spinal motion.  The thoracolumbar spine demonstrated muscle spasms and showed tenderness.  The SLR test was positive on the left.  The thoracolumbar ROM is listed in the chart.  The spine ROM was additionally limited by pain, fatigue, weakness, and lack of endurance after repetitive use.  It was not additionally limited by incoordination and pain had the major functional impact.  Sensation was intact except for left lower extremity sensory deficits suggesting a sciatic nerve (L3-S1) distribution.  Joints, muscle function, peripheral nerves, and reflexes were within normal limits.  The physical medicine and rehabilitation (PM&R) physical exam documented an antalgic (assuming a gait to lessen pain) gait with use of a cane.  The thoracic spine exam revealed abnormal curvature with no spasms, tenderness, swelling, induration, or instability.  The thoracolumbar spine exam revealed abnormal lordosis with no scoliosis, tenderness, or instability.  The thoracolumbar spine ROM was full and pain free.  The lumbosacral spine exam revealed normal curvature and tenderness with no swelling, induration, ecchymosis (bruising), warmth, or bogginess.  The SLR tests were negative.  The assessment listed classic axial mechanical LBP.  The examiner opined that the CI had a good prognosis for recovery over the next 3-6 months.  He recommended discontinuing the cane as this was enabling the CI and there was no need for it.  Cervical, thoracic, and lumbar spine X-rays were normal.

The goniometric range-of-motion (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.

DOS 20070615
Thoracolumbar 
ROM (Degrees)	PT for NARSUM
~3 Mo. Pre-Sep	Ortho
~2 Mo. Pre-Sep	VA C&P
~1 Mo. Pre-Sep	PM & Rehab
~1 Mo. Pre-Sep	
Flexion (90 Normal)	75	Full Active ROM	70	Full ROM	
Extension (30)	(20) 22	“	10	Normal	
R Lat Flexion (30)	(30) 45	“	30	Normal	
L Lat Flexion (30)	(30) 35	“	30	Normal	
R Rotation (30)	(30) 35	“	30	Normal	
L Rotation (30)	30	“	30	Normal	
Combined (240)	215	--	200	--	
Comment	Goniometer	Painful motion	Sensory deficits sciatic nerve (L3-S1) distribution, abnormal gait, back tenderness, muscle spasms, multiple bed rest	Utilizing cane with antalgic gait; back tenderness, abnormal lordosis (contour)	
§4.71a Rating	10%	10%	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5299-5242 (Degenerative arthritis of the spine) citing tenderness, ROM limited by pain, and without neurologic deficit.  The VA rated the back condition 20% coded 5243 (Intervertebral disc syndrome) citing the C&P exam one month before separation.  The VARD cited tenderness, spasm, radiating pain, ROM, joint function additionally limited by repetitive use, and incapacitating episodes.  The Board agreed a 10% rating was supported based on VASRD §4.40 (Functional loss) or §4.59 (Painful motion).  There was no associated radiculopathy for separate peripheral nerve rating.  Although the CI complained of left radicular pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  The Board therefore concluded that additional disability rating was not justified on this basis.  The ROMs in the PT, orthopedic surgery, and PM&R exams did not attain the minimum 10% rating based upon the general rating formula for diseases and injuries of the spine.  The ROMs in the MEB and C&P exams were consistent with the 10% rating (flexion of greater than 60 degrees but not greater than 85 degrees; or a combined ROM of greater than 120 degrees but not greater than 235 degrees of the thoracolumbar spine).  The higher 20% rating would require (flexion of greater than 30 degrees but not greater than 60 degrees; or a combined ROM of not greater than 120 degrees of the thoracolumbar spine).  The Board considered rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome (5243).  The STR contained no incapacitating episode severe enough to require prescribed bed rest and treatment by a physician.  The majority of individual sick slips only listed duty restrictions, and did not specify bed rest.  Only one individual sick slip recommended bed rest if possible, in addition to listed duty restrictions.  Other routes to a rating higher than the PEB’s 10% were considered, but the preponderance of findings from proximate exams did not demonstrate additional functional loss from repetitive use to warrant application of VASRD §4.45 (The joints).  The NARSUM exam documented an awkward gait, back tenderness, and no muscle spasms.  The C&P exam documented an abnormal gait, back tenderness, muscle spasms, and no abnormal spinal curvatures.  The PM&R documented an antalgic gait, back tenderness, abnormal spinal curvatures, and no muscle spasms.  Muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour is consistent with a 10% rating and muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour is consistent with a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 20% 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.  As discussed above, PEB reliance on AR 635-40 for rating the back condition was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5242 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:

UNFITTING CONDITION	VASRD CODE	RATING	
Thoracolumbar Back Pain	5299-5242	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140101 , 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 XXXXXXXXXXXXXXXXXXXXXXX, AR20160002132 (PD201400350)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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