RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-00884
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090330

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Infantryman) medically separated for a low back condition.  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 an Medical Evaluation Board (MEB).  Chronic low back pain with degenerative disk disease was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded gastroesophageal reflux disease, chronic bilateral shoulder pain and crepitus, post-traumatic right thumb pain, atypical chest pain and post-traumatic right ankle pain conditions as meeting retention standards.  The Informal PEB (IPEB) adjudicated low back pain as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The applicant made no specific contention in his application.

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 condition 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 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 20081209	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	10%	Lumbar Degenerative Disease	5242	10%	20090206	
Other MEB/PEB Conditions x 6 (Not In Scope)	Other x 11	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20090330 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Pain (LBP).  The CI reported LBP in 2000.  He attributed his LBP to the wearing of military load-bearing equipment.  His symptoms became worse in 2003, while he was deployed overseas.  He was treated with transcutaneous electrical nerve stimulation, physical therapy, facet block injections, and other non-operative therapeutic modalities.  In spite of all treatment efforts, his LBP persisted and an MEB was initiated.  During the MEB narrative summary (NARSUM) examination on 1 October 2008 (6 months pre-separation), the CI complained of constant, dull aching and stiffness in the lower back.  The LBP was aggravated by lifting, running, prolonged walking, or prolonged standing.  On physical examination his spinal contour and spinal range-of-motion (ROM) were normal.  There was tenderness to palpation with some palpable spasm in the lumbar paravertebral muscles.  Neurological exam (sensory and motor) was normal, and gait was normal.  The NARSUM examiner diagnosed chronic low back pain with degenerative disc disease.

During the VA Compensation and Pension (C&P) exam, on 30 March 2009 (2 months pre-separation), the CI reported intermittent flare-ups of sharp pain and stiffness.  He was able to perform his activities of daily living, but it was difficult to bend forward and put on shoes.  He denied any incapacitating episodes, and had not missed his non-MOS work due to LBP.  There was no sciatica or lower extremity numbness.  He had full ROM on physical exam but all movements were stiff and mildly sore (painful).  Repetitive motion increased the stiffness and soreness (pain), but did not alter the ROM.  Straight leg raise (SLR) was negative bilaterally.  There was no numbness, weakness, or atrophy of the lower extremities, and deep tendon reflexes were normal.  The examiner assessed lumbar degenerative disease.

The ROM evaluations in evidence which the Board weighed in arriving at its recommendation, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB NARSUM Exam
~ 6 mos. Pre-Sep
(20081001)	VA C&P Exam
~ 2 mos Pre-Sep
(20090206)	
Flexion (90 Normal)	90	90	
Combined (240)	240	240	
Comment	Spasm, tenderness to palpation lumbar, normal gait and contour	Painful motion	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the evidence.  The CI’s thoracolumbar ROMs were normal at both NARSUM and C&P exams described above.  The Board determined that the LBP condition was essentially non-compensable, based solely upon limitation of back motion.  However, IAW §4.59 (Painful motion) the Board determined that a separation disability rating of 10% was appropriate.  The Board tried to find a path to a higher rating.  There was not sufficient evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  There was no evidence of additionally ratable peripheral nerve impairment, and no documentation of incapacitating episodes which would provide for a higher rating under the general rating formula for diseases and injuries of the spine.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the unfitting 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 pain condition and IAW VASRD §4.59, 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 20140221, 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 XXXXXXXXXXXXXXXXXXX, AR20160002404 (PD201400884)

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