RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00485
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20041210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard, E6, Track Vehicle Repairer, was medically separated for “chronic subjective low back pain…” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that the PEB used the incorrect VASRD code.  The applicants complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 PEB - 20041210	VARD - 20060718	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic…Low Back Pain…	5237	10%	Lumbar Spine Osteoarthritis…	5242	NSC	20050818	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back pain condition began in 1981 while loading boxes from a truck while on active duty as an engineer.  The CI spent a month in an in-patient status after initially injuring his back with no disease evident on radiographs (magnetic resonance imaging [MRI] and computerized tomography [CT] scan).  The CI had a long history of lumbosacral pain which worsened after prolonged sitting, standing or walking, after which he would report some bilateral posterior thigh weakness and numbness and lower back stiffness.  Treatment included multiple epidural steroid injections, physical therapy, a transcutaneous electrical nerve stimulation (TENS) unit, anti-inflammatory and narcotic pain medications with some relief.  Radiographic studies in August 2003 revealed a normal thoracic and lumbar spine.  An MRI done in September 2003 showed L4-5 degenerative disc changes to the lumbar spine with an otherwise normal thoracic spine.  There were no electrodiagnostic studies (EMG/NCV) in the record for review.  Neurosurgery consultation on 13 January 2004 indicated the CI was not a good candidate for surgery.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for an MEB.  

At the MEB physical examination on 20 April 2004 the CI complained of his on-going low back pain.  The examiner noted that there was some limitation of range-of-motion (ROM) of the spine secondary to pain on the written note with dictated note indicating full ROM with tenderness.  Straight leg raise (for radiating symptoms/signs) was normal.  Reflexes, motor and sensory exams were normal.  The examiner also stated that there were no significant radiculopathy.  The MEB NARSUM dated 1 June 2004 indicated that the CI continued to report daily pain at about 7/10 with exacerbations.  He could only stand for approximately 10 minutes and was unable to walk more than 1-2 blocks without resting.  There was “no real incidence of falling or urine or bowel incontinence.”  Examination showed normal (5/5) strength with 4+ strength on bilateral straight leg raise; but otherwise a negative straight leg test.  Reflexes in bilateral lower extremities were normal.  The CI had a full ROM in his lumbar spine with mild tenderness; however, the examiner stated that the CI “was limited a little bit in his range of motion secondary to pain during exam.”  On 22 July 2004, 4 days after receiving his PEB rating, the CI was seen in Physical Therapy with exam findings of an abnormal appearance of the lumbosacral spine describing the appearance as “flattened.”  Palpations revealed “abnormalities with soreness at the L5-1 area bilaterally.”  There were no muscle spasms.  On 17 August 2004 the CI was examined in the Emergency Room (ER) following a fall into a maintenance pit in the motor pool on 14 Aug 2004.  He stated that he landed on his back and complained of dull pain radiating down both legs.  Follow-up examination in August 2004 indicated some pain relief.  Radiographs documented intervertebral disc disease at L4-5 with a broad based bulge of the annulus fibrosis which abutted and minimally deformed the thecal sac.  On 30 November 2004 the CI reported to the ER and was evaluated for severe back pain that started while walking when he was supervising other Soldiers raking leaves.  The CI reported that his lower back pain was radiating to his neck and that he had weakness in his legs with loss of bowel control the night prior to this visit.  He was referred to and seen in the Medical Hold Clinic.  At that visit the CI reported a history of occasional bowel loss of control.  He reported that it had been happening for a few months and that he had discussed it with his PCM.  Examination showed no abnormal spine contour.  He had localized tenderness to the paravertebral muscles of the lumbosacral and thoracic areas, and positive bilateral straight leg raising.  The examiner noted that the CI had limited ROM but did not provide any specific measurements.  The CI was given medication injection, additional oral medication and placed on 72 hours of quarters.  At the VA Compensation and Pension (C&P) examination on 18 August 2005, performed 8 months after separation, the CI reported chronic low back pain radiating down into the legs producing tingling in the legs and up into the thoracic spine that was not exacerbated by coughing or sneezing.  The examiner reported that the CI walked with a small stepped slow gait slightly stooped forward and he complained of back pain.  Neurological examination demonstrated normal motor strength testing at 5/5 with no atrophy and the examiner also indicated “motor strength testing revealed mild giveaway motor weakness of the right lower extremity.  The remaining motor strength testing was within normal limits.”  Reflexes were normal.  Sensory examination revealed patchy decreased light touch and pinprick sensation in the lower extremities in a nondermatomal distribution.  Romberg testing was normal and tandem gait was intact.  There was muscle spasm with ROM measured at forward flexion of 75 degrees (normal 90) with combined ROM over 120 degrees.  The CI would not walk on his heels or toes and would only squat 1/8th of the way complaining of back pain.  The examiner stated that the CI “used a cane and would not walk even 5 to 10 feet without holding on to walls or objects for support for reasons that are unclear given the objective findings present.”  A functional capacity examination dated 6 September 2005, performed 9 months after separation, indicated complaints of lower back pain with weak legs, and mirrored the VA exam’s comments on use of a cane and walking.  Back ROM was noted as decreased with muscle spasm.  The examiner indicated that the CI “had moderate difficulty getting on/off exam table and would not walk on heels/toes and would only squat 1/8 of the way down complaining of back pain.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), citing pain.  The VA determined that the condition was not service connected (NSC – no rating) listing the condition as 5242 (degenerative arthritis of the spine).  

There is a disparity between examinations with implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence.  All of the evidence prior to separation approximated the disability level noted at the MEB examination.  The post-separation functional capacity examination was more distant from separation and followed the post-separation VA exam.  Given the CI’s re-injury following the MEB exams, the Board adjudged that the ER and PT exams had the highest probative value for rating at the time of separation.  

The Board agreed a 10% rating was justified for the presence of painful motion, tenderness or limited ROM.  There was no greater limitation of ROM to support any rating higher than 10%.  The VA exam would rate 10% for limited ROM.  Although the VA exam also documented muscle spasm and indicated gait abnormalities; the examiner’s comments on gait indicated that those finding were not supported by the remainder of the exam.  The Board adjudged that the record did not support a finding that there was muscle spasm or guarding severe enough to result in an abnormal gait to warrant a 20% rating at the time of separation.  

There was insufficient evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician within the year prior to separation to warrant any rating higher than 10% under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome (5243).  Disability codes 5235 thru 5243 are all otherwise rated under the criteria from the General Rating Formula for Diseases and Injuries of the Spine, and there would be no rating change based on changing the PEB’s disability coding.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  There were subjective symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from potential nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was not sufficient evidence that the CI’s complaints of reported loss of bowel control were due to the back condition, or objectively confirmed on subsequent exams.  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  Giveaway weakness due to pain was not indicative of radicular motor weakness.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  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 for the chronic low back pain condition.  

BOARD FINDINGS:  In the matter of the low back pain 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.  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131220, 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, AR20160005528 (PD201400485)

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