RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00869		
BRANCH OF SERVICE:  Army	date of sepAration:  20080421

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Combat Engineer, medically separated for lumbosacral condition.  The Informal PEB adjudicated “low back pain (LBP)” as unfitting, rated 10%.  

CI CONTENTION:  The CI requested that the Board review all conditions to include sleep apnea. 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 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:  

Admin Corr  - Dated 20080320	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Strain, Sprain, and Spondylosis, Thoracolumbar Spine	5242-5237	10%	20080610	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 6 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20081218 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Low Back Pain/Lumbosacral Strain Condition.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in 2006.  The CI denied any specific initial injury or trauma.  X-rays were normal but a lumbar spine MRI showed early spondylosis (degenerative changes) at the L5-S1 level with a disc bulge.  There was no radiculopathy and orthopedic evaluation concluded there was no surgical indication.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a MEB.  The MEB NARSUM examination on 17 January 2008, approximately 3 months prior to separation noted complaints of daily chronic LBP rated 3-7/10 without radiation into his lower extremities.  The CI reported functional limitations of an inability to move a fighting load, construct an individual fighting position, perform 3-5 second rushes, or to perform sit-ups.  He had additional functional limitations of carrying 30 pounds and limitations to 15 minutes of prolonged standing.  The physical examination findings are summarized in the chart.  The MEB NARSUM referred to an additional physical therapy examination that was not evident in the file but was cited by the PEB as indicating “60°– 90° flexion due to pain.”  At the VA Compensation and Pension (C&P) examination on 10 June 2008, performed approximately 2 months after separation, the CI reported sharp intermittent middle back pain with flare-ups that occurred every 2 days.  The physical exam findings are summarized in the chart.  There was pain with motion but there was no spasm or guarding causing abnormal spinal contour or abnormal gait.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating coded 5237 code (lumbosacral strain), citing spasm without change of gait and 60-90 degrees flexion due to pain.  The VA also assigned a 10% rating coded 5242-5237 (degenerative arthritis of the spine- lumbosacral strain) based on the VA C&P examination 2 months after separation, citing decreased and painful motion and 80 degrees forward flexion.  The Board noted the limitation of thoracolumbar motion recorded in the MEB NARSUM examination met the threshold for a 20% rating. The IPEB noted range-of-motion of 60 to 90 degrees with pain which supports the 10% rating.  The Board noted the VA examination proximate to separation was more detailed, and reported range-of-motion performed after repetitive motion.  Therefore the Board placed greater probative value on the VA examination.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion greater than 60 degrees but not greater than 85 degrees.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve 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 LBP 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 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 20140219 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, AR20160002773 (PD201400869)

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