RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-00886
BRANCH OF SERVICE:  Army	BOARD DATE: 20141028
SEPARATION DATE:  20060320

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (25S/SATCOM Systems Maintainer) medically separated for low back pain (LBP).  The back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Lower 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 (IPEB) adjudicated the LBP as unfitting, rated 0%.  The CI appealed to the Formal PEB but ultimately withdrew his grievance and concurred with the IPEB finding and rating.  The CI was then medically separated.

CI CONTENTION:  “The 30% rating from the VA more accurately reflects the rating that should have been given by the Army.  (20% degenerative disc + 10% lumbar radiculopathy).  I planned on serving 20 years and was unfortunately cut short by 10 years due to this service connected injury.”  

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20051205	VA - (12 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with the MRI showing Degenerative Disc Disease with Herniated Nucleus Pulposus…	5237	0%	Degenerative Disc Disease with Left Paracentral Disc Bulge, Lumbar Spine (L4-5 and L5-S1)	5242	20%	20070314 	
			Lumbar Radiculopathy, Left Lower Extremity Associated
with Degenerative Disc Disease with Left Para Central Disc Bulge, Lumbar Spine (L4-5 and L5-S1)	8599-8520	10%	20070314	
Other x 0 (Not in Scope)	Other x 15	20070314 	
Rating:  0%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20070914. 

ANALYSIS SUMMARY:  The Board acknowledges the CI’s sentiment regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Low Back Condition.  The narrative summary (NARSUM) notes the CI experienced LBP in November 2003 with left leg pain and paresthesia.  The VA Compensation and Pension (C&P) neurological examination noted that initially the CI had normal lumbar x-rays and was treated with physical therapy.  The back condition worsened in 2005 and a magnetic resonance imaging (MRI) showed two lumbar disc herniations.  The CI was again treated conservatively.  He volunteered for deployment on a medical profile.  When he returned, the CI reported some worsening with more numbness of the bottom of the left foot.  A second MRI dated 16 May 2005, noted disc herniations at L4-L5 and L5-S1 that displaced the left L5 and S1 nerve roots, but did not cause any spinal stenosis.  According to the NARSUM no surgery was recommended, but the CI did undergo three epidural injections with some improvement noted.  At the 27 October 2005 MEB examination, approximately 5 months prior to separation, the CI reported LBP with left lower extremity (LLE) pain and paresthesia improved by treatment, but not completely resolved.  The MEB physical exam noted no deformity of the back with full range-of-motion (ROM), with painful motion noted with extension.  There was no tenderness to palpation and no muscle spasm noted.  Lower extremity (LE) strength, sensation and reflexes were normal.  Spine ROM in degrees was flexion 123 degrees (normal 90 degrees) and extension of 27 degrees (normal 30 degrees).

At the VA C&P neurological examination performed on 14 March 2007, approximately a year after separation, the CI reported left side LBP radiating to the left buttock, but not beyond, with intermittent tingling into the left thigh and frequent numbness of the left foot.  He denied any weakness or other neurological symptoms.  The CI reported constant pain at a level that did not interfere with work functioning, with rare incapacitating exacerbations.  The CI reported that within the last week he experienced an exacerbation and left work early once for the first time in a year.  The examination noted a normal gait and posture, normal heel and toe walking, normal LE strength, sensation and reflexes, with subjective decreased sensation in the LLE.  Straight leg raise testing was negative bilaterally.  There was mild straightening of the back with tenderness and muscle spasms of the lower lumbar spine.  Low back ROM was flexion of 40 degrees with pain to 80 degrees (pain a “bit better” at 80 degrees) and combined ROM of 225 degrees.  The VA C&P general examination the same day noted normal posture and gait, normal heel/toe walking and squatting without pain.  There was painful motion of the back noted, with normal LE strength and reflexes and decreased sensation to light touch in the left LE.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated chronic LBP 0%, coded 5237 (lumbosacral strain).  The VA rated degenerative disc disease (DDD) at 20%, coded 5242 (spinal arthritis) and left lumbar radiculopathy 10% coded 8599-8520 (analogous to incomplete paralysis of the sciatic nerve).  The Board noted that at the MEB examination the CI had nearly full back ROM with painful motion and no other objective abnormalities on examination.  At the VA C&P examinations reviewed, both on the same day a year after separation, the CI’s exam noted muscle spasm and TL ROM of flexion of 40 degrees with pain to 80 degrees and a combined ROM of 225 degrees and normal sensation at the neuro exam, whereas the general exam noted only “pain with motion” with decreased LLE sensation.  The Board noted that the CI reported that he had a recent exacerbation of his chronic back pain, the first in a year, just prior to the C&P exams.  The Board majority agreed that the totality of the evidence in the record supports the 10% rating according to VASRD general spine rating guidelines in effect at the time of separation IAW VASRD §4.59 (painful motion).  The Board agreed that the most appropriate code for the CI’s back condition was 5243 (intervertebral disc syndrome) and reviewed to see if a higher rating was achieved based on incapacitating episodes.  There were no documented episodes of incapacitation, defined by the VASRD as a period “. . that requires bed rest prescribed by a physician and treatment by a physician” in the service records.  At the C&P exam the CI reported missing a day of work due to the back condition for the first time in a year and members noted that even if conceding this as a period of incapacitation, it does not meet the compensable threshold of “incapacitating episodes having a total duration of at least one week...in the past 12 months.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the chronic LBP condition, coded 5243.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported symptoms of radiating pain and sensory disturbances at the MEB and C&P neurology examinations.  Sensation was noted to be intact at the MEB examination and the C&P Neuro evaluation, with decreased LLE sensation noted at the C&P general exam and all examinations indicated normal strength with intact reflexes.  Radiating pain from the back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)…”  Therefore the critical decision is whether or not there was a significant sensory deficit which would impact military occupation specific activities.  There is no evidence in this case that the decreased sensation could be described as functionally impairing.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 chronic LBP condition, by majority vote, the Board recommends a disability rating of 10% coded 5243 IAW VASRD §4.71a.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the contended lumbar radiculopathy condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Condition	5243	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

SAMR-RB									

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150006850 (PD201400886)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA