RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01089
BRANCH OF SERVICE:  Army	BOARD DATE:  20141219
SEPARATION DATE:  20080727

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Unit Supply Specialist) separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions (mild anemia, cervical dysplasia, left knee pain, headaches, and overweight) judged to meet retention standards.  The Informal PEB adjudicated “chronic low back pain,” rated 20% citing criteria from the VA 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:  “My conditions limit my forward and back flexion substantially and my back condition limit my working and daily life.  As well as my headaches.  Both my back injury and headaches limit my daily life activities.” 

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 20080428	VA - (1 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam*	
Chronic Low Back Pain			DDD, L-Spine	5237	10%	20080603	
	
5242	
20%	Radiculopathy, Lt Lower Extremity Associated w/DDD	8521	10%	20080603	
			Radiculopathy, Rt Lower Extremity Associated w/DDD	8521	10%	20080603	
Headaches	Not Unfitting	Migraine Headaches	8100	50%	20080603	
Other x 5 (Not in Scope)	Other x 2	
Combined:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20080910 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  

Low Back Condition.  The STR indicated an exacerbation of non-radicular LBP in August 2006 while in Basic Combat Training.  Historically, the [CI] complained of chronic back pain for “years.”  X-rays of the lumbar spine and total body bone scan were normal or unrelated to spine findings.  A magnetic resonance image performed on 22 March 2007 noted degenerative arthritis and multi-level disc disease about the lumbosacral spine.  In October 2007, despite the CI’s new complaint of radicular pain into both legs, an orthopedic exam found painful but full range-of-motion (ROM) without sensory or motor deficits in the lower extremities.  At the MEB narrative summary examination on 4 April 2008; approximately 4 months prior to separation the CI reported constant LBP at a 9/10 pain scale with “some” radiation and shooting pains to both legs.  “She has flares of the back pain to increasing severity of 10/10 with activity of any kind.  She has problems even with prolonged sitting and any type of repetitive movement tends to increase her pain.”  The physical examination revealed a normal gait with lumbar tenderness.  Lower extremity sensation and motor activity was intact.  There was no muscle spasm or atrophy present.  ROM was significantly decreased with painful motion.  The diagnosis was chronic LBP.  The commander’s statement validated the CI’s inability to adequately perform her MOS required duties due to her physical condition.  Her current profile limitations include lifting a maximum weight of 10 pounds.

The VA Rating Decision dated 10 September 2008 revealed normal but painful motion of the thoracolumbar spine with normal sensation and minimally decreased motor at 4 of 5 scale bilateral lower extremities.  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.

DOS 20080727
Thoracolumbar ROM
(Degrees)	MEB ~ 4 Mo. Pre-Sep
(200080314) 	VA C&P ~ 1 Mo. Pre-Sep
(20080603) 	
Flexion (90 Normal)	33	90	
Extension (30)	10	30	
R Lat Flexion (30)	25	30	
L Lat Flexion (30)	23	30	
R Rotation (30)	unreadable	30	
L Rotation (30)	47	30	
Combined (240)	-	240	
Comment	(+) tenderness;
(+) guarding;
(+) abnormal spinal contour	painful motion	
§4.71a Rating	20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA applied similar codes of 5242 (degenerative arthritis) and 5237 (lumbosacral strain) respectively, which was appropriate to the presenting pathology.  IAW VASRD §4.71a general spine formula, the ROM findings rated by the MEB was 20% and 10% by the VA.  There was no evidence of VASRD defined incapacitating episodes to achieve a higher rating under an alternate rating code.  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 lumbar spine condition.

The Board additionally considered if the symptomatic right and left lower extremity radiculopathy warranted a separate disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  The evidence of normal sensation and 4/5 motor functions to the lower extremities did not reflect a true radicular adverse condition.  Additionally, any pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that any radiculopathy condition could not be recommended for additional disability rating.

Contended PEB Conditions.

Headaches:  The Board’s main charge is to assess the fairness of the PEB’s determination that the headache condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The headache condition was not profiled or specifically implicated in the commander’s performance statement and was not judged to fail retention standards.  The condition was reviewed by the action officer and considered by the Board.  There was no performance-based evidence from the record that the headache condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for a headache condition and so no additional disability rating is recommended.

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 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended headache condition, the Board unanimously recommends no change from the PEB’s determination as not unfitting.  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 20140228, 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, AR20150009554 (PD201401089)

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:

Encl			     
						         
CF: 
(  ) DoD PDBR
(  ) DVA