RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00713	
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070725		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Automated Logistics Specialist) medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain due to degenerative disc disease and spondylolysis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “low back pain; MRI indicates L4-5 moderate posterior cerebral disc protrusion; mild L5-S1 osteophyte formation and spondylolysis; without neurologic abnormality; electrodiagnostic evaluation normal” as unfitting, rated 10%.  The CI made no appeals, and was medically separated.

CI CONTENTION:  The CI contended that he is not able to maintain employment due to this disability and contends his rating should be higher.  The 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 IPEB – Dated 20070705	VA – (8 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain; MRI Indicates L4-5 Moderate Posterior Cerebral Disc Protrusion…	5299-5237	10%	Lower Back Strain	5237	NSC*	20080327	
Other MEB/PEB Conditions x 0  (Not in Scope)	Other x 1	
Rating:  10%	No rating	
Derived from VA Rating Decision (VARD) dated 20080430 (most proximate to date of separation [DOS]).   
*VARD dated 20110324 rated back 5243 at 40% effective 20070726, based on 20081016 Spine C&P exam (>12 mos post-sep.)

ANALYSIS SUMMARY: 

Low Back Condition.  The service treatment record (STR) documents that following activation, the CI developed low back pain during combative exercises.  He was unable to advance through mobilization training due to progressive back pain.  A lumbar spine X-ray showed L4-L5 disc space narrowing and L5 spondylolysis (deficient development or degeneration of a vertebral component [pars interarticularis]).  A lumbar spine MRI showed a posterior disc protrusion at L4-L5 that did not directly affect nerve roots.  There was a very mild disc osteophyte (bony aberrant healing reaction to inflammation or trauma) complex at L5-S1.  A physical medicine and rehabilitation (PM&R) encounter documented “… pain in the back with some radiation of pain into both legs along the S1 distribution … Pain is sharp and constant in the back and intermittent in the leg.  Average pain 8/10. … No bowel or bladder issues.”  The physical exam documented a normal gait.  The thoracolumbar spine exam displayed a normal curvature with no tenderness or instability.  The range-of-motion (ROM) was full and without pain on motion.  Straight leg raising (SLR) tests (assesses sciatic nerve root compression by a herniated disc) and standing flexion tests (assesses sacroiliac joint [SI] dysfunction) were negative.  Strength and deep tendon reflexes (DTRs) were normal.  No cervical, thoracic, or lumbar spine somatic dysfunction was observed and no peripheral neuropathy was noted.  The CI was diagnosed with facet syndrome with a plan for left lumbar facet injection.  An electrodiagnostic study showed no evidence of a left sided lumbar radiculopathy (irritation of or injury to a nerve root).  The narrative summary (NARSUM) recounted the history and interventions.  The CI declined epidural steroid injections and failed conservative therapy (medications, activity modification, and physical therapy [PT]).  He “continues to have constant lower back pain at 4/10 intensity … episodes of pain radiating into his left leg  … has subsided …  rarely has any pain radiating to the leg … significant lower back pain with … strenuous exercise, prolonged standing or prolonged walking.”  The physical exam showed a normal gait and he was able to heel and toe walk with “slight pain in the lower back”.  There was tenderness from L4 to S1 but no paralumbar muscle spasms.  The SLR tests were positive bilaterally.  The goniometer measured trunk/lumbar ROM values were flexion of 75 (90 normal), extension of 15 (30), bilateral lateral flexion of 45 (30), and bilateral rotation of 45 (30) degrees.  The ROMs were repeated three times with only flexion and extension being limited by pain.  Sensation and DTRs were normal and pathologic reflexes were absent.  A lumbosacral spine X-ray was negative.  At the compensation and pension (C&P) exam the CI complained of back stiffness, decreased motion, and weakness since activation.  He complained of associated constant, moderate, low back pain with pain radiating to both legs.  The CI reported weekly severe spinal flare-ups precipitated by bending and lifting.  He denied spasms, numbness, paresthesias (abnormal sensation, tingling, burning, prickling), and urinary, bowel, or erectile dysfunction.  There were no incapacitating episodes of back pain during the preceding 12 months.  The physical exam revealed normal symmetry, posture, and gait without assistive devices.  There was no abnormal spinal curvature, muscle spasm, atrophy, weakness, tenderness, or guarding.  The goniometer measured thoracolumbar ROM values were flexion of 60 (90), extension of 25 (30), right lateral flexion of 30 (30), left lateral flexion of 30 (30), right rotation of 25 (30), and left rotation of 20 (30) degrees.  There was pain on repetitive ROM testing, but ROM values were unchanged from baseline, and there was no fatigue, weakness or incoordination.  Strength, sensation, and DTRs were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10% (coded 5299-5237).  The PEB cited MRI findings, ROM limited by pain, tenderness, normal electrodiagnostic evaluation, and no neurologic abnormality.  The VA did not service connect the low back condition because no service treatment records available for review.  The Board agreed a 10% rating was supported based on VASRD §4.40 (functional loss) or §4.59 (painful motion).  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).”  The critical decision is whether or not there was significant motor weakness which would impact military occupation specific activities.  There was no evidence that motor weakness or sensory loss 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.  The ROM in the MEB exam is consistent with the 10% rating (flexion of greater than 60 degrees but not greater than 85 degrees; or a combined ROM of greater than 120 degrees but not greater than 235 degrees of the thoracolumbar spine).  The higher 20% rating would require (flexion of greater than 30 degrees but not greater than 60 degrees; or a combined ROM of not greater than 120 degrees of the thoracolumbar spine).  The ROM values documented in the C&P exam were flexion to 60 degrees “passive ROM … pain begins at 60 degrees and ends at 70 degrees”, but normal or near normal ROM in all other planes (extension 25 degrees, combined ROM 190 [240 normal] degrees).  The C&P flexion of 60 degrees is the threshold (greater than 30 degrees but not greater than 60 degrees) for the higher 20% rating.  While the proximate exams documented tenderness, there was no evidence of muscle spasm, guarding, abnormal spinal contour, or abnormal gait.  Other routes to a rating higher than the PEB’s 10% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45, and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  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 low 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.  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 low 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 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 XXXXXXXXXXXXXXXXXXXXX, AR20160002372 (PD201400713)

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