RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	     CASE:  PD-2014-01087
BRANCH OF SERVICE:  Army 	      SEPARATION DATE:  20041103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard, E-4, Cannon Crewmember, medically separated by the Informal Physical Evaluation Board (PEB) for “chronic low back pain,” with a disability rating of 10%.

CI CONTENTION:  The CI asserted his service-connected condition will not get any better and will only get worse, therefore, he requests to be medically retired.  The applicant’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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 PEB - Dated 20040917	VARD - 20140619	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	10%	Degenerative Disc Disease, Back	5243	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  
Not Service Connected (NSC)	

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s low back condition began in October 2003 when he sustained an injury to his lower back while loading trucks during military training.  Radiographic studies showed mild displacement of the L5-S1 vertebrae, and narrowing of the disc space, but there was no surgical indication.  Treatment did not result in sufficient improvement to allow return to unrestricted duties.  At the MEB narrative summary (NARSUM) examination on 2 April 2004 (7 months prior to separation) the CI reported intermittent low back pain, with intermittent bilateral foot numbness.  Examination showed no spinal deformity, tenderness over the lower lumbar spine, and normal gait.  Lower extremity strength and reflexes were normal, and the exam was silent regarding muscle spasm.  Thoracolumbar ROM measurements performed by physical therapy on 26 April 2004 (6 months prior to separation) recorded flexion of 100 degrees (normal 90 degrees), combined range-of-motion (ROM) of 240 degrees (normal 240 degrees), and there was no additional limitation after three repetitions of motion.  The examiner rendered diagnoses of L5-S1 spondylolisthesis and degenerative disc disease. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (Lumbosacral strain), citing tenderness to palpation as the rating rationale.  The original VA rating decision dated 19 June 2014 (nearly 10 years after separation) used the 5243 code (Degenerative arthritis of the spine), but did not service connect the low back condition because service treatment records were not available, and there was no VA Compensation and Pension (C&P) examination conducted.  Although there was insufficient limitation of motion to support a minimum rating, the Board agreed a 10% rating was justified for the presence of tenderness of the lower lumbar spine. 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 during the year prior to separation to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The Board also deliberated if an additional disability rating was justified for lower extremity radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  Although the CI experienced bilateral foot numbness, there was no objective evidence of functional impairment with a direct impact on fitness, such as muscle weakness.  The radiating pain component is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The Board therefore concludes that additional disability rating was not justified on this basis.  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 lumbosacral strain condition.

BOARD FINDINGS:  In the matter of the low back 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.  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 20131210, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

26 AUG 2016

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 XXXXXXXXXXXXXXXXXXXX, AR20160005444 (PD201401087)

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