RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01069
BRANCH OF SERVICE:  Army	BOARD DATE:  20150203
SEPARATION DATE:  20070619

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve E-5 (Wheeled Vehicle Mechanic) medically separated for a back condition.  The back 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 a Medical Evaluation Board (MEB).  The back condition, characterized by the MEB as “low back pain” and “herniated discs with spinal stenosis and foraminal stenosis,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 10%, with likely application of AR 635-40 para B-29 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Herniated Disk.” “Herniated Disk/Having major back problems now because of herniated disk.”

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:

Service IPEB – Dated 20070523	VA - (11 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5238	10%	Chronic Low Back Pain with DJD and Spinal Stenosis at L4-5, L5-S1 and DDD	5243-5238	20%	20080515	
Other x 0 (Not in Scope)	Other x 6	
Rating:  10%	Rating:  20%	
Derived from VA Rating Decision (VARD) dated 20080821 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  The CI developed acute onset of low back pain (LBP) with radiation to the right leg in February 2006 while performing sit-ups.  Pain resolved, but then returned in May 2006 when it persisted despite physical therapy, steroid injections, activity modification and medication.  Magnetic resonance imaging (MRI) showed some spinal canal narrowing at L4-5 and L5-S1, and disc bulges at the same levels with some contact of the exiting nerve roots.  The CI reasonably declined a surgical option.

At a pain clinic evaluation on 5 September 2006 (9 months prior to separation), the CI complained of right leg pain that was exacerbated by prolonged sitting, standing or bending.  Narcotic and anti-inflammatory pain medications helped only for short periods of time.  Examination showed a normal gait and some lumbar tenderness.  Non-goniometric range of motion (ROM) showed flexion of 30 degrees and “full” extension.  Lateral flexion was present and rotation was not assessed.  An examination finding of nerve root irritation was present on the right, and some weakness of distal right lower extremity muscles was present.  At a follow-up visit on 12 December 2006 (6 months prior to separation) the CI reported improvement in the lower extremity radicular symptoms, although he still experienced some pain to the right lower extremity.  Examination showed an antalgic gait but good strength in the lower extremities.

At the MEB exam on 15 February 2007 (4 months prior to separation), the CI reported numbness and pain shooting down his right leg.  The physical exam noted abnormal spinal contour, but was silent regarding gait, muscle spasm or guarding.  The narrative summary physical examination on 23 March 2007 (3 months prior to separation) noted paraspinal muscle tenderness and normal lower extremity strength.

At the VA Compensation and Pension exam performed 11 months after separation, the CI reported using pain medication three times per week for intermittent back pain that was aggravated by prolonged walking or standing.  Since separation, he worked as a security guard.  Examination showed a normal gait and no use of assistive devices.  There was no additional limitation of spine motion after repetitive motion.  The neurological exam of the lower extremities, including muscle strength, was normal.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT/MEB ~3 Mos. Pre-Sep	VA C&P ~ 11 Mos. Post-Sep	
Flexion (90 Normal)	35 	45	
Combined (240)	130	195	
Comment	+Painful motion	+Painful motion, tenderness	
§4.71a Rating	20% (10% PEB)	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5238 code (spinal stenosis) while the VA rated the condition at 20% using a 5243 code (intervertebral disc syndrome) combined with 5238.  The Board assigned little probative value to the pain clinic ROM determination in September 2006 because it was non-goniometric and did not assess all ROM parameters.  Both of the remaining examinations reported lumbar flexion that justified a 20% rating (i.e. forward flexion greater than 30 degrees but not greater than 60 degrees).  Under the general spine formula, criteria for a 40% rating were not present.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating.  The Board finally deliberated if additional disability was justified for radiculopathy in this case.  The CI complained of right lower extremity pain, and MRI findings noted some nerve root impingement.  The Board notes that the presence of functional impairment with a direct impact on fitness is the crucial factor in its decision to recommend any condition for rating as additionally unfitting.  Undeniably the CI suffered additional lower extremity pain from nerve involvement, but this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The lower extremity pain components in this case have no functional implications.  Therefore the critical decision is whether or not there was a significant motor weakness which would impact MOS-specific activities.  Although one examiner in September 2006 (9 months prior to separation) recorded some right leg weakness, the same examiner later noted normal strength.  All subsequent examiners likewise consistently noted normal lower extremity muscle strength.  There was no motor impairment that could be linked to any functional deficit or limitation of specific physical requirements.  The radiculopathy condition was not profiled and was not judged to fail retention standards.  Therefore, the Board concluded that this condition could not be recommended for additional disability rating.  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 chronic 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.  As discussed above, PEB reliance on AR 635-40 for rating low back pain was operant in this case and the condition was adjudicated independently of that regulation by the Board.  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5238 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	
Chronic Low Back Pain	5238	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140107, 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, AR20150010401 (PD201401069)

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