RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00566
BRANCH OF SERVICE:  Army	BOARD DATE:  20150611
SEPARATION DATE:  20071107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Unit Supply Specialist) medically separated for chronic back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  She was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “L4-L5, L5-S1 lumbar stenosis,” “L4-L5 spondylolisthesis status post L4-L5 and L5-S1 laminectomy and bilateral foraminotomy,” “L4-L5 instrumented posterior spinal fusion with posterior arthrodesis of L4-L5,” and “back pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (obstructive sleep apnea) for PEB adjudication.  The Informal PEB adjudicated “chronic back pain” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The applicant makes no specific contention in her application.

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 20070726	VA* - (~7 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Lumbar Spine DDD	5242	10%	20070315	
Other x 1 (Not In Scope)	Other x 14 	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20080310 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Back Pain Condition.  The service treatment record was inconsistent on the mechanism of injury to her back, but it reflected initial occurrence in April 1996.  Initial spinal X-rays were normal and she was diagnosed with mechanical low back pain (LBP).  Three years later, the CI was involved in a motor vehicle accident which resulted in entire spine pain without radicular symptoms.  Repeat X-rays noted moderate arthritis of the lumbar spine.  Physical therapy (PT) was recommended.  A year later, the CI presented with LBP after a bout of coughing and sneezing with progressive symptoms into both legs and feet.  PT was continued.  A magnetic resonance image revealed lumbar spine arthritis associated with single-level bulging disc.  An X-ray of the lumbar spine on 12 May 2004 listed a conclusion of early degenerative changes and a comment of, “Doubt that there is any significant abnormality at this time.”  A repeat of lumbar X-rays performed in April 2005 again noted degenerative changes.  Despite aggressive PT, chiropractic manipulation, and local steroid injections, the CI continued with LBP.  Orthopedic consultation of June 2006 recommended a lumbar fusion with instrumentation for her degenerative condition now resulting in spinal stenosis with subjective right-sided lower extremity radiculopathy.  She underwent the described surgery on 17 August 2006.  Despite improvement in her overall symptoms, persistent pain continued and she was referred to a MEB.

At the MEB narrative summary (NARSUM) examination on 8 March 2007 8 months prior to separation, the CI’s chief complaint was “back pain and right leg pain.”  She reported the “inability to perform her military duties to include moving a fighting load two miles, construct a fighting position and do 3-to-5-second buddy rushes.”  Additionally, she had difficulty lifting/carrying supplies, bending and twisting, or doing inventory of her supplies.  In reference to enabling activities of daily living, “she cannot participate in recreational walking or recreational exercise.  She has difficulty with housecleaning and chores.”  Her physical examination (PE) revealed spinal tenderness, and pain into right thigh with bilateral leg raising.  Her pain intensity rating was “moderate” and pain frequency rating was listed as “frequent.”  Thoracolumbar range-of-motion (ROM) was normal.  Her diagnosis remained as previous with surgical fusion.  She was permanently profiled in April 2007 and the commander’s statement fully acknowledged that her profiled restrictions prevented her from performing any physical training.

At the VA Compensation and Pension (C&P) examination (performed a week after the NARSUM), (approximately 8 months prior to separation) she endorsed daily LBP lasting for hours and aggravated by lifting, prolonged sitting/standing, and house cleaning.  Her alleviating factors were listed as “none.”  The VA PE revealed a normal gait and normal ROM.  There was no tenderness, spasms, or painful motion identified.  Her diagnosis remained unchanged.  The goniometric 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.

Thoracolumbar ROM
(Degrees)	MEB (NARSUM) 
~8 Mos. Pre-Sep
(20070308) 	VA C&P
~8 Mos. Pre-Sep
(20070315) 	PT ~4 Mos. Pre-Sep
(20070720) 	
Flexion (90 Normal)	No report of ROM	90	(90) 95, 95, 95	
Extension (30)		30	(30) 35, 35, 35	
R Lat Flexion (30)		30	(30) 30, 30, 30	
L Lat Flexion (30)		30	(20) 20, 20, 20	
R Rotation (30)		30	(30) 40, 40, 40	
L Rotation (30)		30	(30) 30, 32, 31	
Combined (240)		240	230	
Comment	tenderness	-	-	
§4.71a Rating	0%-10%	0%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the Service and VA titled the unfitting back condition slightly differently, they both utilized similar codes of 5241 (spinal fusion) and 5242 (degenerative arthritis) respectively; and, both citing tenderness.  Board members first agreed that the second listed VA C&P examination was significantly remote in time reference from the DOS and thus was excluded from having probative value for impairment rating.  All Board members further agreed that the evidence of tenderness within the NARSUM examination does support the PEB’s 10% impairment rating.  No other examination revealed evidence for any degree of a positive rating.  There were no alternative coding options available.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), members concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain.  The Board also considered if the subjective radicular symptoms warranted an additional disability rating; but, members agreed that the requisite link of the neuropathy type symptoms with functional impairment was not in evidence.  Any pain or other sensory component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that a radiculopathy condition could not be recommended for additional disability rating.

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 chronic 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.

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 20140122, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXXXXX, AR20150015845 (PD201400566)

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:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA