RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00640
BRANCH OF SERVICE:  Army	BOARD DATE:  20141212
SEPARATION DATE:  20070423

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard, E-5 (Human Resource Specialist) medically separated for a lumbar spine condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar spine condition, characterized as “axial back pain” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB) which affirmed the PEB findings and rating.  The US Army Physical Disability Agency also affirmed the findings and recommendation of the PEB, separating the CI with that disability rating.

CI CONTENTION:  “Increased Back Pain. Unable to work a full day. Very hard to move in morning.  Knees constantly collapsing. Wear back & knee braces continuously.  Depression.”  Her 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:

Service FPEB – Dated 20070131	VA - (6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease of the Lumbar Spine	5010-5242	10%	20071017	
Other x 0  (Not in Scope)	Other x 6 	
Combined/Rating:  10%	Combined:  30%	

ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  The narrative summary (NARSUM) noted the CI developed back pain in February 2003 after PT training.  Routine X-rays of the back were normal.  Magnetic resonance imaging (MRI) of the back in February 2005 revealed some degenerative disc disease and a small central disc without herniation or compression of a spinal nerve.  Follow-up MRI’s in February and December 2006 showed some worsening of the disc disease.  The back condition required treatment with large doses of major narcotic medication for pain control.  A special X-ray study (disc-ogram) suggested the source of pain to be related to two lower spinal discs.  On orthopedic evaluation dated 18 April 2006, the CI reported no bowel/bladder difficulties and no weakness, numbness or pain in her legs.  On exam her gait was normal.  The CI was able to bend and touch her knees with pain; extension of the back was normal.  No back spasm was present.  Motor, sensory and reflex exams were normal.  At the MEB/NARSUM evaluation on 23 August 2006, 8 months prior to separation, the CI reported no bowel/bladder problems and no lower leg motor or sensory difficulties.  The MEB physical exam noted minimal tenderness in the lower back with deep palpation.  Motor, sensory and reflex exams were normal.  On physical therapy evaluation on 28 September 2006, range-of-motion (ROM) of the spine was flexion 105 degrees and extension was 30 degrees (Normal: flexion-90 degrees; extension-30 degrees).  At the VA Compensation and Pension evaluation, performed on 17 October 2007, 6 months after separation, the CI reported back pain and chronic daytime fatigue and that she required a back brace.  She noted no episodes of incapacitation in the prior year, and that the back condition did not affect her occupation.  On physical examination the mid back was tender to palpation but spasm was absent.  Flexion was 70 degrees with pain.  Motor, sensory and reflex exams were normal.  New routine spine X-rays were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition 10% using different codes.  The PEB rated under code 5237 (Lumbosacral strain) citing back pain with motion and the VA under code 5242 (Arthritis of the spine), citing a decreased ROM of 70 degrees.  Under both codes, IAW §4.71a, a rating of 10% requires spinal flexion of greater than 60 degrees, but no greater than 85 degrees.  A higher rating of 20% requires flexion of greater than 30 degrees but no greater than 60 degrees.  The Board unanimously agreed that the record in evidence supported a rating of 10% rating for the back condition at time of separation for painful motion IAW §4.40 and §4.59.  The Board agreed that no rating higher than 10% was achievable under ROM criteria.  The Board considered a rating under §4.123 (Neuritis).  However, there was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under code 5243, or evidence of unfitting bowel or bladder difficulties for rating consideration IAW §4.114 or §4.115.  The Board found no other appropriate codes for consideration and no pathway to a rating higher than 10% for the back pain condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back pain 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.  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 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 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, AR20150008690 (PD201400640)

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						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA