RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00596
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Military Police, medically separated for “chronic radiating low back pain,” with a disability rating of 20%.

CI CONTENTION:  The CI contended he was not evaluated for other conditions and was given a higher rating for his conditions by the VA.  The CI’s 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 Physical Evaluation Board (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 - 20041130	VARD - 20050602	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5243	20%	Herniated Disc L5-S1	5243	40%	20050330	
			Radiculopathy, Right Lower Extremity, Associated with Herniated Disc L5-S1	8720	10%	20050330	
			Radiculopathy, Left Lower Extremity, Associated with Herniated Disc L5-S1	8720	10%	20050330	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 90%	

ANALYSIS SUMMARY:  

Chronic Radiating Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) began in 1997 while performing physical training.  It was noted the CI had scoliosis.  Diagnostic imaging in October 2003 revealed a mild bulging disc at L5-S1 vertebra.  A neurosurgery clinic examination in January 2004 showed full strength in the CI’s bilateral lower extremities, no tenderness to palpation of the low back, with flexion and extension range of motion (ROM) limited by pain.  The CI underwent a series of pain management facet and lumbar epidural injections with no change in his condition. Repeat diagnostic imaging on 30 October 2004 showed a disc bulge at L4-5 vertebra and a right-sided disc extrusion, possibly related to pressure on the L4-5 nerve root, with no central canal stenosis.  There was no surgical indication and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The CI was permanently profiled for his chronic low back condition, but he was permitted to take the alternate aerobic event to satisfy physical fitness standards.  He was referred for a MEB which forwarded “chronic low back pain with radicular symptoms” for PEB adjudication.  

At the time of the neurosurgery clinic appointment on 8 July 2004, 7 months prior to separation, the CI reported a pain level of 7/10 due to his low back.  On examination there was focal tenderness in the lower lumbosacral area (midline and right paraspinous).  Straight leg raise test was positive bilaterally (sign of nerve root irritation in lower back).  There was decreased sensation on the left lower extremity as well as the right foot.  Motor examination was essentially normal with slight decrease in strength (4-4.5/5) on the left lower extremity.

At the MEB examination (recorded on DD Form 2807 and 2808) dated 23 August and 8 September 2004, respectively (5 months prior to separation), the CI reported tingling and numbness in both legs, and more so on the left.  He had missed numerous duty days due to his back pain.  Physical exam showed tenderness to palpation at L5-S1.

The MEB NARSUM examination on 12 November 2004 (3 months prior to separation) noted the CI’s complaints of daily back pain described as 5-6/10, occasionally rising to 8-9/10 in intensity.  The pain was deep and sharp with intermittent radicular symptoms to the left leg. The CI was unable to perform physical training or carry out his normal duty as a dog handler. Increased physical activity, especially bending or running worsened the pain.  Physical exam showed negative straight leg raise testing bilaterally.  Muscle strength, sensory and reflex testing were normal bilaterally.  The examiner reported mild to moderate tenderness to palpation at the L4-5 region, midline. ROM testing showed forward flexion to 50 degrees with combined ROM of 140 degrees.

At the VA Compensation and Pension (C&P) general medical examination on 30 March 2005, 2 months after separation, the CI reported daily lower back pain which radiated to both hips, left worse than right, with decreased sensation on the left.  His feet tingled.  He had no bowel, bladder, or erectile dysfunction.  Pain was aggravated by prolonged sitting, standing, driving, walking, physical activity, bending, and lifting.  He had pain down the back of his legs and weakness.  Post separation, he was unable to find work due to his back condition.  Physical exam showed an upright, slow and moderately antalgic gait.  The CI did not require assistive devices when he walked.  He was able to tandem walk.  His muscle strength showed ability to maintain flexion against resistance without tenderness (5/5).  The CI’s spine evidenced slight straightening of lumbar lordosis.  There was bilateral paravertebral muscle spasms noted.  ROM measurements showed forward flexion to 40 degrees and combined ROM of 110 degrees.  All ROM measurements were limited by increased pain and spasm.  The examiner estimated an additional 10 to 15 degrees loss of motion due to pain, fatigue and lack of endurance after repetitive ROM testing (positive DeLuca).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain 20%, coded 5243 (intervertebral disc syndrome), citing forward flexion to 50 degrees.  The VA rated the chronic low back pain 40%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 2 months post separation, citing forward flexion limited to 40 degrees due to pain and muscle spasms, with an estimated additional 15 degree limitation of active motion after repetition, due to pain, fatigue, and lack of endurance with some incoordination. The VA also awarded a 10% rating for radiculopathy in each of the CI’s lower extremities (10% for each leg, coded 8720 (sciatic nerve, neuralgia), residual of the CI’s lower back condition.

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), reported on the NARSUM and VA examinations.  Although the VA awarded a 40% rating based on application of DeLuca factors (additional loss of motion after repetition) during its examination 2 months post separation, the Board believed the CI’s overall disability picture at the time of separation was best described by a 20% rating.  His in-service exams proximate to separation did not show spasm, antalgic gait or guarding – the presence of which would be indicative of a spine disability at or above 20%.  He was permitted to take the alternate physical fitness test, including pushups.  His commanding officer, although noting the CI’s inability to perform in his primary military occupation specialty, did note that his most recent performance as a Desk Sergeant was “excellent.”  A neurosurgery examination in June 2005, 4 months after separation, documented a normal gait, normal ROM and no spasm.  

The VA C&P examination in October 2005, 8 months after separation, documented a smooth and coordinated gait.  Another VA C&P exam in March 2006, 13 months after separation, showed forward flexion to 60 degrees with no mention of DeLuca factors as further limiting ROM or functionality.  The Board considered whether a higher rating (IAW VASRD §4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease there was insufficient evidence of incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board then considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Diagnostic imaging studies supported some level of radicular nerve irritation or involvement, but physical exams (physical medicine, physical therapy, MEB NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  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 the 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).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded 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 found insufficient cause to recommend a change in the PEB adjudication for the chronic radiating low back pain.   

BOARD FINDINGS:  In the matter of the chronic radiating 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 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, AR20160007257 (PD-2014-00596)

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