RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00635
BRANCH OF SERVICE:  Army	Separation Date:  20061025

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Health Care Specialist) medically separated for chronic 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 “lumbar spondylolysis with herniated nucleus pulposus at L4-5 and L5-S1,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated the chronic back pain condition as unfitting, rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant makes no specific contention in his application.  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 20060906	VA* - (~1 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain...	5243	10%	Lumbar Spine Herniated Nucleus Pulposus	5239	10%	20060925	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4	
RATING:  10%	RATING:  10%	

ANALYSIS SUMMARY:  

Back Condition.  The CI developed chronic low back pain (LBP) during Basic Training with progressive worsening following his deployment.  In December 2003, a lumbar spine X-ray was normal; however, a flexion/extension X-ray showed very little motion due to muscle spasm.  A repeat lumbar spine X-ray showed spina bifida (congenital incomplete closing of the backbone and membranes around the spinal cord) at the S1 level.  A lumbar spine MRI done in February 2006 showed a L4-5 and L5-S1 desiccation and central disc herniation along with mild stenosis at L4-5 and encroachment in the right S1 nerve root at the L5-S1 level.  The MEB DD Form 2808, History and Physical, dated in June 2006, documented paraspinal tenderness, range-of-motion (ROM) limited with decreased flexion, extension, lateral flexion and rotation; and pain elicited by ROM and by lower extremity exam.  The Physical Therapist (PT) performed ROM evaluations for the MEB approximately 5 months prior to separation was cited by the PEB and documented pain-limited flexion of 50 degrees (normal 90) and combined ROM of 170 degrees (normal 240).  The MEB Narrative Summary (NARSUM) exam approximately 3 months prior to separation documented that the CI reported constant, sharp to dull LBP with radiation down his bilateral lower extremities when he sat or stood too long.  He also reported a locking sensation in his lower back with some numbness and tingling.  The examiner documented back tenderness with no muscle spasm and ROM was limited by pain (no measurements specified).  The motor, sensory, and reflex exams were normal.  

The VA Compensation and Pension (C&P) exam approximately a month prior to separation documented that the CI reported constant, sharp, cramping locking LBP.  The pain worsened with sitting or standing greater than 30 minutes.  Exam documented a normal gait.  There was back tenderness with painful ROM to the VASRD normal limits in all planes.  Straight leg raise (for radiating symptoms) recreated back pain, but no radiating symptoms were noted.  There was no documented weakness, sensory deficit or reflex abnormality.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the back condition as 5243 (intervertebral disc syndrome) and rated at 10%.  The VA coded the back condition as 5239 (spondylolisthesis or segmental instability) and rated at 10%.  The Board adjudged that the C&P exam was closest to (and prior to) separation, more comprehensive, best represented the disability level noted in the remainder of the record, and therefore had the higher probative value.  The documented painful motion and mild tenderness, met the 10% rating criteria of “localized tenderness not resulting in abnormal gait or abnormal spinal contour.”  There was no evidence of incapacitating periods or more limited thoracolumbar spine ROMs for higher rating.  

The General Rating Formula for the Spine includes all thoracolumbar spine pathology and includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the affected spine.  Although the CI reported radiation of numbness and tingling down both legs, there was no objective evidence of fixed motor weakness or focal neurologic deficit for additional rating.  Since no evidence of functional impairment from any radiculopathy existed in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 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 the USAPDA pain policy (AR 635-40) for rating was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the back 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 20140120 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 XXXXXXXXXXXXXXXXXXXXXX, AR20160003074 (PD201400635)

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