RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00745
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030115 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Multiple Launch Rocket System Operator) medically separated for chronic low 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 MEB referred “lumbar degenerative disc disease and lumbar stenosis with low back pain and sciatic pain” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain with sciatic pain…without neurologic abnormality” as unfitting, rated 10%, citing application of AR 635-40 and Department of Defense Instruction (DoDI) 1332.39.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI contended that a civilian administered MRI shows a spot on his spine and that he would like his case reviewed for accuracy and fairness.  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:  

IPEB - Dated 20021028	VA* - (1 day Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with Sciatic Pain…Without Neurologic Abnormality	5299-5295	10%	Degenerative Disc Disease, L3-4, L4-5, Without Radiculopathy	5295	20%	20030114	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 6	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20030129 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The record and narrative summary (NARSUM) noted that the CI had low back pain since 1998, re-aggravated in December 2001 and was refractory to conservative management.  The CI had complaints of bilateral sciatic distribution (leg) numbness and pain down to his knees.  MRI findings included advanced lumbar degenerative disc disease with lumbar hypermobility and stenosis.  Bone scan was essentially normal.  The MEB physical exam performed approximately 6 months before separation noted back tenderness to palpation and “full range of lumbar motion.”  Neurologic exam was normal for strength, reflexes and sensory testing.  Gait was normal for heel walk, toe walk, and tandem walk; straight leg raise bilaterally was negative (for radiating symptoms).  The DD Form 2808, Report of Medical Examination, approximately 3 months before separation also noted tenderness and decreased range-of-motion (ROM) with extension limited to 10 degrees.  

At the VA Compensation and Pension (C&P) exam performed the day before separation, the CI reported chronic lower back stiffness and weakness with pain waxing and waning throughout the day.  He complained of “an associated bilateral lower extremity radiculopathy extending to the knee” and follow-up nerve conduction studies (NCV/EMG) were normal (“No electrophysiologic evidence of a peripheral neuropathy or a lumbar nerve root lesion is detectable”).  On lumbar exam there was tenderness to palpation with normal gait and posture.  Straight leg raise was negative and there were no neurologic deficits noted (normal strength, reflexes and sensation).  ROM of the lumbar spine was with painful motion and measured as forward flexion 0-50 degrees, with extension and lateral flexion(s) of 0-30 degrees.  The examiner indicated that motion may be additionally limited on repetition or flares due to “pain, it's accompanying fatigue, and lack of endurance, all, equal in contribution.”  

The Board directed its attention to its rating recommendation based on the above evidence.  The 2003 VASRD coding and rating standards for the spine (prior to change in September 2003), which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below.  
5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20	
Slight ........................................................................................................................................ 10

5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ...................................................... 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
in standing' position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10

Of note, the oldest 5293 (intervertebral disc syndrome) criteria from prior to September 2002 had already been changed to “incapacitating episodes” (current criteria) and radicular symptoms were not part of the 2003 back rating criteria.  Additionally, the lumbar spine was considered a separate ratable segment (rather than the current thoracolumbar segment) and there were no VASRD normal ranges for lumbar motions.  The Board considered that the VA back exam specified lumbar measurements and no normal ranges were specified; normal limits at the time ranged from 50 degrees to 90 degrees depending on the measurement technique and the source.  There were no incapacitating episodes for rating under 5293, and no fixed peripheral neurologic deficits that rose to the level of being unfitting for additional rating as a radiculopathy.  The Board considered that the record supported a “slight” limitation of lumbar spine motion (without demonstrable deformity of vertebral body) and that the CI had pain on lumbar spine motion.  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 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.  As discussed above, PEB reliance on AR 635-40 and DoDI 1332.39 for rating the back was operant in this case and the condition was adjudicated independently of those regulations/instructions by this Board.  In the matter of the 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.  

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 20130815, 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, AR20160002375 (PD201400745)

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