RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01164
BRANCH OF SERVICE:  Army	BOARD DATE:  20150224
SEPARATION DATE:  20080617

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Explosive Ordinance Disposal Specialist) medically separated for lumbosacral strain.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic low back pain (LBP) with degenerative disk disease (DDD) condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “lumbosacral strain” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A.

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:

Service IPEB – Dated 20080303	VA - (1 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	10%	Lumbar Degenerative Disc Disease (DDD)	5010-5243	10%	20080702	
Other x 0 (Not In Scope)	Other x 0	
Combined:  10%	Combined:  10%	
*Derived from VA Rating Decision (VARD) dated 20080714 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lumbosacral Strain.  The narrative summary notes the CI injured his back while lifting furniture in August 2006.  Lumbar spine X-rays on 28 August 2006 showed mild DDD and a spina bifida defect (developmental abnormality of the vertebra) at S1.  Notes in the service treatment record indicated the CI reported intermittent LBP for 3 years, with pain radiating down the outer aspect of the lower extremities (LE), without neurological symptoms.  Magnetic resonance imaging (MRI) on 15 September 2006 showed mild DDD.  The CI had chiropractic treatment and epidural steroid injections without benefit.  Repeat lumbar MRI on 17 July 2007 again noted DDD, with significant neural foraminal narrowing bilaterally, worse on the left than the right.  At an evaluation in spine clinic on 9 September 2007 the CI reported 90% back pain and 10% bilateral LE radiation, mostly to the back of the thighs, without numbness or weakness, or other neurological symptoms.  The examination noted near full, but painful, range-of-motion (ROM), without muscle spasm.  Lower extremity strength, sensation, and reflexes were normal and straight leg raise (SLR) testing was negative.  The surgeon indicated that the CI was not currently a surgical candidate and would have to stop smoking for consideration of additional procedures.  Electrodiagnostic (EMG) studies on 10 December 2007 were normal.  Repeat lumbar spine X-rays on 5 September 2007 noted facet arthritis and X-rays of the sacrum and coccyx (tailbone) were normal.  The CI opted for no further evaluation and a MEB was initiated.

At the MEB examination on 28 December 2007, 6 months prior to separation, the CI reported constant LBP.  The MEB physical exam noted normal gait and LE strength, sensation, and reflexes, with negative SLR bilaterally.  PT ROM measured on 19 November 2007 (repeated three times) was flexion 80 degrees (normal 90) and combined ROM 225 degrees (normal 240), with pain, and there was no change of ROM with repetition.  At the VA Compensation and Pension (C&P) spine examination on 2 July 2008, performed a month after separation, the CI reported constant LBP, without flare-ups or physician prescribed bed rest in the last 12 months.  The examination noted ROM of 80 degrees flexion and combined ROM of 230 degrees, with mild tenderness to palpation.  The remainder of the exam was unchanged from the MEB exam.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain) and the VA rated it 10%, coded 5010-5243 (intervertebral disc syndrome with traumatic arthritis).  The Board agreed that the evidence in record supports the 10% rating according to current VASRD rules for rating the spine in effect on the date of separation based upon full, painful thoracic lumbar (TL) ROM, IAW VASRD §4.59 (Painful motion).  There was no evidence of a compensable rating based on decreased TL ROM alone, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, or incapacitating episodes to provide a higher rating IAW §4.71a.  The Board considered if there was evidence of an unfitting radiculopathy due to the back condition to provide additional rating IAW 4.124a for peripheral nerve impairment.  The CI reported pain radiating into both legs at earlier treatment visits in the STR, but there was no EMG evidence of radiculopathy and at the MEB and C&P the CI reported constant back pain without noting radiation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and there was no evidence in record of LE weakness or sensory deficits and the EMG was normal.  The Board concluded therefore that no additional disability rating could be recommended.  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 back 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 lumbosacral strain 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 20140303, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXXXX, AR20150019011 (PD201401164)

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