RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01143
BRANCH OF SERVICE:  Army	BOARD DATE:  20150409
SEPARATION DATE:  20070121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active drilling Reserve E-4 (Unit Supply Specialist) medically 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 “chronic low back pain secondary to degenerative disc disease,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain, secondary to degenerative disc disease” as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in her application; however, she attached a single-page note stating, “…also I was seeing Mental Health while being mobilized with depression, later was diagnosed with PTSD, but I started seeing MHD in Ft Dix, NJ.”

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:

IPEB – Dated 20080918	VA* - (~11 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Secondary to Degenerative Disc Disease	5299-5237	10%	Intervertebral Disc Syndrome with Degenerative Joint Disease of the Lumbar Spine (Mechanical Back Strain-5237)	5243	40%	20090910	
			Nerve Root Irritation, Right Lower Extremity	8520	Deferred**	20090910	
			Nerve Root Irritation, Left Lower Extremity	8520	Deferred**	20090910	
Other x 0 (Not In Scope)	Other x 15	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20100309 (most proximate to date of separation [DOS]). **VARD dated 20110921 increased to 10% effective 20090409

ANALYSIS SUMMARY:

Low Back Pain.  The CI was evaluated for LBP in 2003 at which time she had an unremarkable magnetic resonance imaging without significant neural foraminal (passageway for nerves exiting the spinal canal) narrowing or spinal canal stenosis, but clinically she had very tight piriformis (below gluteus) muscles and pes planus (flat feet).  Physical therapy (PT) was instituted for a stretching program and orthotic shoe inserts were ordered.  On 23 January 2004, the CI slipped on ice (did not actually fall) and injured her back.  An urgent care examination on the same day revealed no tenderness on palpation (TTP) or muscle spasm of the middle or lower back; a muscle relaxant was prescribed along with 3 days of light duty.  A radiology report of the lumbar spine dated, 21 April 2005, demonstrated minimal anterior osteophytes (excess bone) at multiple levels.  There was normal alignment and the disc spaces were within normal limits.  A rheumatology note, dated 12 May 2005, noted the CI’s back was continuously in pain; and the pain and numbness extended into the right buttock and down to the lateral aspect of the leg and sometimes into the right groin.  On 5 August 2005, the CI presented with lower back pain with radiation to her right great toe for 2 weeks.  The pain occurred with prolonged walking, standing, and climbing stairs.  History revealed the CI had chronic back pain and sciatica as a result of an injury during physical training in 1989 and had been managing with nonsteroidal anti-inflammatory medications (NSAID) and narcotics as needed through the VA and civilian ambulatory care.  Prior to mobilization, she had pain, which was treated with Darvocet (an opiate analgesic and pain reliever), as needed.  Examination revealed TTP over the right sacroiliac joint/buttock, normal sensation, diminished reflexes in the lower extremities, 4/5 strength of the right lower extremities, positive straight leg raising (to determine nerve root irritation) on the right, and a strong heel and toe walk.  A NSAID and Darvocet were prescribed for pain along with heat therapy, stretching, and a profile for an alternate cardio for physical fitness testing.  In November 2005, the CI indicated she had lower back pain for 2 years and had been considered for injections by her civilian physician.  On 31 October 2006, the CI reported her pain level as 8/10 and was unable to maintain a static position.  The pain was associated with numbness and burning on both sides when sleeping and she had weakness on the right.  The thoracolumbar range-of-motion (ROM) was within functional limits with deficits of strength, ROM, and endurance.  An examiner opined the findings indicated nerve root injury/compression at L2-L4; and the CI was expected to benefit from PT.  A transcutaneous electrical nerve stimulation (TENS) machine for pain control was issued on 7 December 2006 and the CI noted that the treatment “relaxes the back and makes it feel better.”  On 9 February 2007, after the CI was demobilized from active duty, she indicated that she was treated for a bulging disk in her back and was told she had degenerative joint disease.  For 3 years, she had been taking Darvocet, but was advised to use TENS instead, which helped; and she also received injections in her hip.

The MEB narrative summary, dated 13 May 2008, indicated the CI claimed her symptoms related to chronic LBP started after a fall on the ice in 2004 at which time she landed directly on her tailbone (not corroborated by service treatment record entries or line of duty determination).  Her recurrent symptoms, which were exacerbated by prolonged sitting, walking and exercise, included chronic back pain with occasional radicular pain to the left lower extremity past the knee.  She had treatment by PT and TENS, but had not been seen [in the recent past] by pain management or a neurosurgeon for a herniated disc of the lumbosacral spine (LS).  Examination revealed no evidence of kyphosis (forward curvature of the spine), lumbar lordosis or scoliosis.  Tenderness was noted over the iliolumbar (lower back along the waist) region on the right near the sacroiliac joint.  There was no spasm or midline tenderness; muscle strength and sensation were normal bilaterally; straight leg raising was positive (to determine nerve root irritation), but “she could not specifically relate a true radicular pattern consistent with sciatic pain.”  Reflexes were normal; and a Patrick’s test (to determine pathology in the hip joint or sacroiliac joint) was positive bilaterally.  X-rays of the LS, dated 21 March 2008, revealed 12 degrees of left scoliotic curvature with mild hyperlordosis and disc space narrowing at L5-S1 while X-rays of the hips were normal.  The examiner assessed the CI’s condition as chronic LBP secondary to degenerative disc disease (DDD) with no hard findings of radiculopathy; however, she gave a history of a herniated disc and radicular pain past the knee.  A permanent L3 profile was issued on 21 March 2008 for degenerative disc of the LS spine with limitations of all functional military activities, physical fitness testing, and no standing more than 10 minutes per hour and no lifting greater than five pounds.  At the MEB physical examination, dated 6 June 2008, the examiner noted slight curvature of the spine, pain with ROM and decreased ROM; the clinical neurologic evaluation was checked “Normal.”  The undated commander’s statement indicated the CI could not perform her MOS duties in the unit and needed to take breaks due to her limitation of standing for a prolonged time.

At the VA Compensation and Pension examination, dated 10 September and performed 11 months after separation, the CI reported the pain of her neck and back began “many years ago” on performing military duty.  She was seen by “a myriad of physicians” and was given multiple profiles and had treatments with medication, PT and a TENS unit without resolution of the back pain.  She noted stiffness, fatigue, muscle spasms, decreased ROM, numbness and weakness with paresthesias of her legs.  She had no bowel problems but linked her back pain and frequency every three to four hours “round the clock.”  She stated she could function with medication such as Darvocet and naproxen, a NSAID, and noted she received intramuscular cortisone injections in 2005/2006 without relief.  There were no incapacitating episodes in the prior year.  The examiner noted the CI was five feet seven inches and weighed 234 pounds and had diffuse tenderness of the thoracolumbar spine with bilateral positive straight leg raising.  There was no radiation of pain on movement, no muscle spasm, no guarding, no weakness, or any evidence of ankylosis.  The ROMs for flexion were 30 degrees (Normal 90 degrees) and the combined ROMs were 80 degrees (Normal 240 degrees).  The ROM was limited by pain after repetitive use and pain as the major functional impact, but was not additionally limited by fatigue, weakness, lack of endurance, or incoordination.  Neurologic examination did show evidence of a lumbar intervertebral disc syndrome with nerve root involvement most likely involving the sciatic, femoral, and obturator nerves.  There were no lumbar sensory deficits and motor strength was decreased for bilateral hip and knee extension movements.  Bladder dysfunction was “at least as likely as not” based on frequency based on the CI report of not having any bladder infection, although she did have Type 2 diabetes mellitus, which is not in scope.  An X-ray series of the thoracic spine revealed no acute fracture, subluxation or dislocation and the lumbar spine X-rays documented degenerative arthritic changes at L4-L5.

The 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 ~4 Mo. Pre-Sep
	VA C&P ~21 Mo. Post-Sep
	
Flexion (90 Normal)	75(75/75/75)	30	
Extension (30)	10(10/12/12)	10	
R Lat Flexion (30)	25(25/24/24)	10	
L Lat Flexion (30)	25(25/21/25)	10	
R Rotation (30)	30(31/31/32)	10	
L Rotation (30)	30(30/33/30)	10	
Combined (240)	195	80	
Comment	Limitation due to pain; localized tenderness over L4 and L5 Sps, L5-S1 space, and distal lumbar paraspinals.  No muscle spasm; guarded in all planes; gait-WNL; hyperlordotic	ROM limited by pain after repetitive use.	
§4.71a Rating	10%	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5299-5237 (lumbosacral sprain) for chronic LBP secondary to DDD in September 2008.  The VA initially assigned a 10% rating (from 2007) for mechanical back pain using code 5237 and then increased the CI’s rating to 40% using code 5243 (Intervertebral disc syndrome) based on an examination dated 10 September 2009 (nerve root irritation of both the right and left extremities using code 8520 (sciatic nerve) was deferred and then assigned 10% for each extremity).

The Board considered whether an additional rating could be recommended under a peripheral nerve code for the associated sciatic radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case had no apparent functional implications; and, the motor impairment was either intermittent or relatively minor and cannot be linked to significant functional consequence while in the service.  Thus, there was insufficient evidence of a separately ratable functional impairment (with fitness implications) at the time of separation from the residual radiculopathy; and, the Board cannot support a recommendation for an additional disability rating on this basis.

The Board then sought a route to a higher rating; however, the Board members noted a disparity between the MEB and VA examinations with implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  In assigning probative value to these somewhat conflicting examinations, the Board noted that the MEB measurements were more proximate to separation and more complete than the VA examination.  Furthermore, there was not a reasonable accounting for the impaired ROM in the interval between the examinations.  There was no report any injury, illness, surgery, aggravation, or intercurrent event to explain the disparity, although the CI’s weight was noted to be 235 pounds at the VA examination.  Therefore, based on the evidence, members agreed that the preponderant probative value should be assigned to the MEB evaluation.  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 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 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.

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 20140304, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

							XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review
	
SAMR-RB									

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 XXXXXXXXXXXXXXX, AR20150013308 (PD201401143)

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			XXXXXXXXXXXXXXX
				Deputy Assistant Secretary of the Army
				    (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA