RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00732
BRANCH OF SERVICE:  Army	BOARD DATE:  20150121
SEPARATION DATE:  20061019

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Infantryman) medically separated for chronic back pain.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a temporary L2 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “mechanical, low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the back condition as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Getting wors whith the time.”  [sic]

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:

Service IPEB – Dated 20060724	VA - (18 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Lumbar Strain 	5237	40%	20080428	
Other x 0 (Not in Scope)	Other x 2	
Rating:  10%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20080522.

ANALYSIS SUMMARY:

Chronic Back Pain Condition.  The MEB narrative summary (NARSUM) noted the CI had onset of chronic low back pain after a mortar blast and fall off a roof in November 2003.  The pain was persistent and aggravated by lifting, running, and sit-ups.  Treatment included physical therapy (PT), chiropractic care, medications, activity limitation, and a back brace (but no surgery).  The CI also reported falling from the stairs and striking his lower back in November 2005, which led to evaluations in primary clinic, imaging, and referral for PT.  Magnetic resonance imaging (MRI) of the lumbar spine in February 2006 was normal.  At a primary care visit on 1 February 2006, the CI had lumbosacral spine tenderness, no muscle spasms, and normal lumbosacral spine motion.  At a PT visit on 22 February 2006, 4 months post-injury, the CI had normal gait, tenderness in the lower back paraspinal muscles, no scoliosis or increased lordosis, normal strength in the lower extremities, forward flexion of 50 degrees (normal 90), and extension 20 degrees (normal 30).  These ranges-of-motion (ROMs) were improved from 2 weeks earlier and unchanged a month later on 20 March 2006.  At a physical medical visit on 30 May 2006, the CI complained of moderate (6/10) pain and was noted to have “normal” lumbosacral spine flexion and extension, and overall normal muscle tone and strength.  At a chiropractic visit on the following day (31 May 2006), the CI had thoracolumbar spine tenderness, muscles spasms, painful and limited motion, and normal appearance.  At the MEB exam on 16 June 2006, 4 months prior to separation, the CI had tenderness to palpation of the paraspinal lumbosacral muscles, decreased movement (flexion, extension, rotation, and lateral flexion), normal gait, and normal strength and reflexes.  Thoracolumbar ROM measurements performed by PT on 19 June 2006:  flexion 70 degrees (normal 90) and combined ROM 210 degrees (normal 240).  At a physical medicine appointment on 22 June 2006, the CI had normal gait and posture.  At the NARSUM examination on 10 July 2006, 3 months prior to separation, the CI had no paraspinal muscle spasm, normal reflexes, normal strength, and maneuvers for radicular signs were negative.

At the VA Compensation and Pension exam performed on 10 April 2008, 18 months after separation, the CI reported pain radiating to the lower extremities for 3-4 hours each day, flares of severe pain lasting 3-4 hours once a week, and use of a back brace.  The CI denied any periods of physician-prescribed bed rest during the previous 12 months.  On examination there was normal gait, muscle spasms in the lumbosacral area severe enough to result in reverse lordosis, and normal sensation and strength.  Forward flexion was 30 degrees (normal 90) and combined ROM was 115 (normal 240), with functional loss due to pain.  At a remote exam in December 2010 (4 years after separation) the CI had abnormal gait, thoracolumbar muscle spasm (not severe enough to cause abnormal gait or spinal contour), normal strength, flexion 52 degrees (normal 90), and combined ROM of 145 degrees (normal 240), and no additional limitation after 3 repetitions of ROM.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition with analogous code 5237 (Lumbosacral strain) at 10%, citing the thoracolumbar ROM limited by pain, with localized tenderness.  The VA rated the condition at 40% (code 5237) based on the VA examination 18 months after separation, citing the functional loss of ROM due to pain.  In assigning probative value to these somewhat conflicting examinations, the Board noted that:  (1) the MEB measurements were consistent with other proximate (prior to separation) exams by primary care, PT, physical medicine, chiropractic, and orthopedic clinics; as well as the normal MRI findings; (2) the exams by PT were consistent with a flare of back pain (likely due to the reported fall and injury in November 2005) that responded to treatment, resulting in improved ROMs closer to separation; (3) review of the service treatment record did not detail any further injury or worsening of the condition prior to separation; and (4) the MEB measurements were consistent with the diagnostic and clinical pathology in evidence (normal imaging, consistent observations of normal gait).  The VA examination’s probative value was judged to be compromised by its remoteness (18 months) from the date of separation, and reflected post-separation worsening.  Therefore, based on all evidence and associated conclusions just elaborated, Board consensus was that preponderant probative value should be assigned to the MEB physical therapy ROM examination.  The measurements in the PT exam warrant a rating of 10% under code 5237.  Review of service treatment records did not reflect evidence to support a higher rating:  ankylosis of the thoracolumbar spine, flexion limited to 60 degrees or combined ROM limited to 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or physician-prescribed bed rest for a duration of at least 2 weeks.  Although the record contained entries that the CI complained of pain and/or numbness radiating into the legs, the MRI was normal showing no pathology which would cause radicular manifestations and no examination documented weakness or loss of sensation in the legs.  While the CI may have experienced some radiating symptoms associated with his back pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no evidence of a functional impairment due to radiculopathy which could be considered for a separately unfit determination and rating.  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.  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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140127, 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 XXXXXXXXXXXXXXX, AR20150011016 (PD201400732)

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