RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00431
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20070311

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 chronic low back pain.  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 “lumbago, chronic, non-radicular” and “intervertebral disc degeneration, L4-5, L5-S 1, mild,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated low back pain as unfitting, rated 10%.  The CI made no appeals and was medically separated.  

CI CONTENTION:  He was not evaluated for his PTSD condition.  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 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 20070118	VA* - (~2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain...	5299-5242	10%	Lumbar Strain	5237	0%	20070522	
Other x 0 (Not In Scope)	Other x 5 	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20070927 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The Board noted that the degenerative disc disease (DDD) contributed directly to the chronic back pain in this case.  Members first agreed that the DDD and back pain were not separate conditions which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding).  

Chronic Low Back Pain Secondary to Degenerative Disc Disease.  The service treatment record (STR) documented a back injury that occurred while lifting and cleaning out the barracks in April 2006 (11 months pre-separation).  At a clinic visit 2 weeks after injury, the examiner documented tenderness over the T10-L3 levels with normal alignment and curvature.  Imaging in July 2006 (8 months pre-separation) documented DDD (“minimal to mild” desiccation; “equivocal” and “generalized” bulging of the discs) at the L4, L5, and S1 level.  Electrophysiologic studies of both lower extremities in October 2006 (5 months pre-separation) were negative for radiculopathy.  The MEB Narrative Summary (NARSUM) exam was performed on 18 October 2006 (5 months pre-separation).  The CI reported “constant 5-6/10 pain which may radiate down both thighs, right greater than left” with prolonged standing, walking, bending or lifting.  The pain frequently disrupted sleep and caused night awakening.  The pain increased to 9/10 with any prolonged physical activity.  He denied weakness or numbness.  The examiner documented normal posture and stance, “intact stride,” and normal heel to tie walk with diffuse tenderness to palpation in the lower lumbar paraspinal muscles.  There was normal strength, sensation and reflexes.  

On the MEB DD Form 2807-1, Report of Medical History (dated 20 October 2006), the CI reported “numbness starting in toes and working its way up.”  On the MEB DD Form 2808, Report of Medical Examination (dated 20 October 2006), the examiner documented forward flexion of 40 degrees (and did not specify the method of measurement).  Physical therapy (PT) range-of-motion (ROM) (using the inclinometer; dated 25 October 2006; 5 months pre-separation) documented pain limited flexion with both flexion and extension documented as 30 degrees each.  All other “active motion” was noted to be “within normal limits.”  There was otherwise no STR documentation of ankylosis.  There was no STR documentation of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  There was no STR documentation of physician prescribed bed rest or periods of incapacitation.  

The VA Compensation and Pension (C&P) exam was performed on 22 May 2007 (two months post-separation).  The CI reported constant sharp pain with “stiffness and weakness;” the inability to bend or stand up straight “sometimes;” and that his impairment was limited to “lifting, bending, running, or jumping.”  He further stated that he “required bed rest” at the time of pain; however, his condition did not cause incapacitation.  The C&P exam in evidence did not include back ROM.  However the VA rating decision (VARD) dated 27 September 2007 referenced the ROM documented during the VA C&P exam.  The VARD documented normal ROM in all planes with pain at end points for extension, left and right lateral flexion, and left and right rotation.”  There was no evidence of radiating pain, muscle spasm, or nerve tension findings.  Lumbar spine radiographs (dated 22 May 2007) documented “good alignment,” with preserved disc spaces.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the back condition as unfitting, and granted a 10% rating analogously coded as 5299-5242 (degenerative arthritis of the spine).  The VA initially rated 0% in 2007, coded 5237 (lumbosacral strain); however, the rating was later revised (Decision Review Officer Decision dated 8 February 2008) to 10%, coded 5010 (degenerative arthritis, due to trauma, substantiated by radiographs) and assigned from the date of separation.  The Board noted the disparity between the MEB, PT, and C&P exams and carefully reviewed the evidence to determine the probative value of each exam.  The MEB DD Form 2808 did not specify the placement of the device or whether a dual inclinometer method was used.  There was no further documentation of extension, rotation, or lateral flexion measurements for consideration.  The Board considered the PT ROM (dated 25 October 2006) and noted that they were performed by a methodology that did not conform to the VASRD instructions which are based on goniometric measurements of thoracolumbar flexion from the vertical plane.  In this case, the PT exam specified use of an inclinometer; and the accuracy of this method was in question.  The post-separation VARD (dated 27 September 2007) documented that the ROM documented in the incomplete C&P exam were all normal with “painful motion at end points” in five specific planes.  The Board considered all exams in evidence regarding which was the most probative and reflective of the disability at the time of separation.  The Board noted that the MEB and PT exams did not conform to VASRD instructions.  The pre-separation ROM did not provide evidence of “chronicity” with respect to the VA exam.  The VA exam supported a rating of 10% rating based on painful motion and demonstrated that the baseline ROM was normal.  In this case, the MEB and PT exams were five months prior to separation while the VA exam was performed within 2 months of separation.  The Board’s rating recommendations are based on ratable criteria at the time of separation; therefore, higher probative value was placed on evidence that was most proximate to the time of separation.  Since the VA exam was more proximate to separation, more complete, and in conformity to VASRD standards, the exam provided a useful baseline and was assigned relevant probative value in the Board’s efforts to arrive at a fair and permanent rating recommendation.  In addition, there was no documentation of ankylosis, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour in support of a higher rating.  There was no documentation of physician prescribed bed rest or periods of incapacitation in support of a higher rating under the intervertebral disc syndrome.  There were no objective findings to support consideration of a separately unfitting peripheral nerve disability rating.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board consensus was that a disability rating of 10% for the low back condition was appropriately recommended in this case.  

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 low back condition was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the low back condition and IAW VASRD §4.71a, by majority vote, the Board 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 20140115, 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 XXXXXXXXXXXXXXXXXX, AR20160003105 (PD201400431)

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