RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01159
BRANCH OF SERVICE:  Army	BOARD DATE:  20141017
SEPARATION DATE:  20060307

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31B/Military Police) medically separated for back condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “low back pain (LBP) due 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 recurrent back strain” as unfitting, rated 10% with likely application of the US Army Physical Disability Agency pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The rating should have been higher, perhaps to 40% because:  (1) Doctors and the commander rate me unfit for my MOS (military police) for multiple medical reasons (see attach).  (2) Not only my military career was affected, but also I had to resign as civilian police officer (approx. a year later after I was medically discharged) and find a desk job because of my back and knees problems (I used Voc-Rehab).  (3) My medical records also show that I had back problems, but I also had knee problems for which the Dept. of the Army did not rate me for or considered during the medical evaluation.  (4) My medical records also show that my back injury worsen due to combat related situations, and (5) I had sleep problems that were not addressed during the services, such as PTSD [posttraumatic stress disorder] and Sleep Apnea.” 

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 those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition is addressed below.  The contended knee, sleep apnea and PTSD conditions were not identified by the MEB or PEB; and are not within the DoDI 6040.44 defined purview of the Board.  These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20060206	VA – (1 week Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	10%	Discogenic Disease and Spinal Stenosis…	5243	20%	20060228	
Other x 0 (Not in Scope)	Other x 3 	
Combined:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20060321 (most proximate to date of separation (DOS))

	
ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that a higher rating should have been granted for the unfitting medical condition documented at the time of separation.  The Board also acknowledges the CI’s information regarding the significant impairment with which his medical conditions continue to burden him.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of the PEB rating determinations compared to VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Low Back Pain (LBP).  The CI injured his back during physical training in late 2002 or early 2003.  He has suffered with LBP ever since the injury.  Magnetic resonance imaging performed in December 2004 showed central disc protrusions at L4-L5 and L5-S1.  The CI was treated with physical therapy (PT) and medications.  In spite of treatment, his LBP persisted and an MEB was initiated.  The MEB physical examination was in November 2005.  The MEB narrative summary was dictated on 6 January 2006.  The CI was seen by PT on 11 January 2006 for a range-of-motion (ROM) exam.  Those ROM measurements are summarized in the chart below.

On 28 February 2006, a week prior to separation, the CI had a VA Compensation and Pension (C&P) exam.  He reported pain in the lumbosacral area, with occasional radiation to both feet.  The pain was occurring 5 days per week and was made worse by bending, running, stretching or lifting.  On physical exam there was some lumbar tenderness over the L3-5 interspace and 3+ paraspinal muscle spasms noted.  Straight leg raise (SLR) was negative and gait was normal.  The examiner estimated a 15 degree loss of function with acute flare of pain but the exact degree of dysfunction is not clinically possible.  This is application of the Deluca requirement which would take 15 degrees off all thoracolumbar ROMs noted below resulting in a flexion measurement to 55 degrees.  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~ 8 weeks Pre-Sep
(20060111)	VA C&P ~ 1 week Pre-Sep
(20060228)	
Flexion (90 Normal)	55 active (70 passive)	70 (55 with DeLuca)	
Extension (30)	15	20	
R Lat Flexion (30)	10	20	
L Lat Flexion (30)	15	20	
R Rotation (30)	35	25	
L Rotation (30)	40	25	
Combined (240)	155	180	
§4.71a Rating	20%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB utilized VASRD code 5237 (lumbosacral strain) rated at 10%.  The PEB based its rating on the PT exam 8 weeks prior to separation, which rendered a thoracolumbar forward flexion of 70 degrees passive and 55 degrees active; rated at 10%.  The VA utilized VASRD code 5243 (intervertebral disc syndrome) rated at 20%.  The VA based its rating on the C&P exam performed a week prior to separation, which rendered a thoracolumbar forward flexion of 70 degrees; however, a final forward flexion of 55 degrees was granted founded on the VA examiner’s lumbar tenderness over the L3-5 interspace, 3+ paraspinal muscle spasm and Deluca observations.  The Board consensus determined the PT and VA examinations corroborated a 55 degree thoracolumbar ROM at the time of separation.  IAW VASRD §4.71a, a 20% rating is warranted when forward flexion is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine are not greater than 120 degrees.
After due deliberation in consideration of the evidence and reasonable doubt, the Board consensus determined that a disability rating of 20% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling condition which would justify a rating higher than 20%.  The Board also considered the matter of radiculopathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had radicular symptoms; however, there was no performance-based evidence that the radiculopathy impacted his military duties.  After due deliberation in considering the preponderance of evidence, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus 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 chronic LBP condition and IAW VASRD §4.71a, the Board recommends by a majority decision a disability rating of 20% for the LBP condition.  The single voter for dissent has submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior disability determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5237	20%	
RATING	20%	

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

				

MINORITY OPINION:  

After a thorough review of the evidence, the minority voter disagrees with the majority Board recommendation.

Evidence documents that the February 2006 C&P exam was performed just a week prior to separation from service and therefore has greatest probative value.  At that exam, thoracolumbar forward flexion was 70 degrees and thoracolumbar combined ROM was 180 degrees.  IAW VASRD §4.71a, a 10% rating is warranted when forward flexion is greater than 60 degrees but not greater than 85 degrees.  A 10% rating is also warranted when combined thoracolumbar ROM is greater than 120 degrees but not greater than 235 degrees.  This case clearly falls into the 10% rating category.  There is insufficient evidence to support a 20% rating.

The C&P examiner estimated that there would be a 15 degree loss of function with an acute flare of pain, but the exact degree of dysfunction was not clinically possible to state.  In other words, he is guessing that if the CI had a flare-up of his LBP, then he would suffer a 15 degree loss of function.  However, at that February 2006 exam, thoracolumbar forward flexion was 70 degrees.  This is the ROM measurement in evidence, which should be used for adjudicating the case.

In the matter of the LBP condition and IAW VASRD §4.71a, the dissenting member of the Board recommends no change in the PEB adjudication.

SAMR-RB									

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150007660 (PD201401159)

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