RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01040
BRANCH OF SERVICE:  Army	BOARD DATE:  20150422
Separation Date:  20091002

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Unit Supply Specialist) medically separated for low back pain (LBP).  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “lower back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501; no other conditions were submitted by the MEB.  Two other conditions, hypertension & latent tuberculosis were also referred to the PEB.  The PEB adjudicated “low back pain…” as unfitting, rated 10%, referencing the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am still suffering from back pain and I cannot do some of my normal activities.  I am not able to lay down for a long period of time; I cannot play with my kids as I would like because any time I bend down or do any physical activities, my back hurts.  I can't do a lot of physical exercises, such as running, push-ups, sit-ups, etc. without aggravating the pain.”

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 20090811	VA - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain (LBP)…	5299-5237	10%	Low Back Strain	5237	0%	20090916	
Other x2 (Not in Scope)	Other x 0 (Not in Scope)	
Combined:  10%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20091007.

ANALYSIS SUMMARY: 

LBP.  The CI developed atraumatic LBP in 2006 which got progressively worse over time.  A lumbar spine X-ray done for LBP with flexion was normal.  A thoracic spine MRI and lumbar spine MRI both done on 6 August 2007 were normal.  He was seen by physical therapy (PT) from November 2007 intermittently through to June 2009 for LBP treatment.  The CI underwent a scoliosis survey which involved a thoracic spine X-ray that demonstrated mild scoliosis of the upper thoracic spine.  The PT noted physical exam findings of an abnormal thoracolumbar spine lordosis slightly increased; an abnormal appearance of the lumbosacral spine; painful motion with goniometric range-of-motion (ROM); positive sacroiliac joint testing and a slumped seated posture.  The medical provider noted that the CI had the LBP for 3 years and had failed PT, Pain Clinic and Chiropractic treatments.  The Pain/Spine Clinic specialist noted physical exam findings of minimally limited ROM; significant spasm in the paraspinal muscles bilaterally more on the right side; tenderness on the left side; most prominent pain over the L3 vertebrae with normal motor, sensory and reflexes.  The CI underwent an epidural steroid injection on 11 June 2009.  The MEB narrative summary (NARSUM) exam approximately 3 months prior to separation documented that the CI had a poor response to the steroid injection and that with a pain exacerbation; the pain rating was 8/10 with a baseline of 5/10.  He also reported pain that radiated down both sides of his buttocks and radiated up to his mid back.  There were aggravating factors of extensive walking, running, jogging, sitting for long periods, standing for long periods and doing an abdominal workout.  The examiner noted under Imaging Studies that on 27 April 2009, a scoliosis survey showed mild scoliosis of the upper thoracic spine.  The MEB NARSUM physical exam findings are summarized in the chart below.  The PT performed ROMs for the MEB exam and noted an abnormal spine motion.  The PT physical exam findings are summarized in the chart below.  

The VA Compensation and Pension (C&P) exam 17 days prior to separation documented fatigue, decreased motion, stiffness, spasms ad pain.  The CI reported that the pain was sharp and moderate in intensity in the mid to low back and would radiate down to the bilateral posterior thighs.  The pain was aggravated by standing, lying down, bending and lifting and limited his walking to less than one mile.  The examiner noted that the CI reported that X-rays showed scoliosis.  A lumbosacral spine X-ray done during this exam was normal.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM (Degrees)	MEB ~3 Mo. Pre-Sep 	PT ~2.5 Mo. Pre-Sep	VA C&P 17 Days. Pre-Sep	
Flexion (90 Normal)	Used ROM’s from PT	85	90	
Combined (240)		215	240	
Comment	Pos. painful motion; Normal strength, sensation & reflexes; Pos. scoliosis thoracic spine	Pos. painful motion	Normal gait; Normal strength, sensation & reflexes; No Deluca criteria	
§4.71a Rating	20% (PEB 10%)	10%	20% (VA 0%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the LBP condition as 5299 analogous to 5237 (Lumbosacral or cervical strain) and rated at 10%.  The VA coded the low back strain condition as 5237 and rated at 0%.  The “General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  Both the PT, MEB and VA C&P examiners documented the history of scoliosis.  The CI met the 20% rating criteria for “abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% 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 LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5099-5237 IAW VASRD §4.71a.  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	
LBP	5099-5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140224, 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 XXXXXXXXXXXXXXX, AR20150013341 (PD201401040)

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 20% 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