RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01166
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20081202

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Military Police) medically separated for low back pain.  The 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 “low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other medically acceptable conditions (knee pain, occasional and headaches) for PEB adjudication.  The Informal PEB adjudicated “spinal stenosis, diagnosed as low back pain” as unfitting, rated 10%, citing application of the Veterans Affairs 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:  His back condition continues to worsen and negatively impacts his daily activities.  Additionally, he was not evaluated for his PTSD condition.  His complete submission is at Exhibit A.  

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 20080825	VA* - (~4 Yrs. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Stenosis … Low Back Pain	5238	10%	Lumbago	5299-5237	0%	20120424	
Other MEB/PEB Conditions x 2 (Not In Scope)	Other x 1	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20120629 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Spinal Stenosis, Diagnosed as Low Back Pain.  The earliest note in the service treatment record (STR) dated 9 September 2005 written by a physical therapist indicated the CI had lower back pain for 3 days after lifting and throwing bags.  Examination revealed the range-of-motion (ROM) measurements were within normal limits although there was tenderness to palpation at L4-5 in the facet/paraspinal areas.  Education and exercise were reviewed and naproxen (a nonsteroidal anti-inflammatory drug (NSAID)) and Flexeril (cyclobenzaprine, a muscle relaxant) were prescribed.  In September 2005, the thoracolumbar spine demonstrated a full ROM, while there were muscle spasms of the lumbosacral spine.  Diclofenac (an NSAID) was prescribed and the cyclobenzaprine was continued.  In March 2007 the ROM was still full, but there were no muscle spasms.  X-rays were normal without evidence of trauma and meloxicam (an NSAID) was prescribed.  Back pain continued in July 2007.  The lumbosacral spine demonstrated a full ROM, and naproxen was prescribed.  In October 2007 the CI was recommended to restart physical therapy.  An MRI in December 2007 revealed multilevel Schmorl’s nodes (disc protrusions into adjacent vertebra), mild disc desiccation at L5-S1, and small posterior disc bulges with bilateral facet hypertrophy causing mild narrowing of the bilateral neural foramina (nerve passage sites) at L4-L5 and L5-S1.  Orthopedic evaluation in February 2008 noted the CI fell backwards while wearing body armor during deployment, which worsened the pain.  On examination there was tenderness to palpation of the lumbar region and forward flexion with the knees straight was to the “top of boots.”  The orthopedic assessment was lumbago secondary to foraminal stenosis with no radiculopathy and no myopathy.  The treatment plan consisted of activity modification, NSAIDs, physical therapy, and weight loss.  A note dated 22 May 2008 indicated the CI was involved in an automobile accident when the driver behind him “suffered from microsleep” on 1 April 2008.  X-rays of the thoracic and lumbar spine were normal.  The diagnosis of thoracic/lumbar contusion was made based on pressure and tapping pain over the mid and lower spine with no motor or sensory defects. 

A permanent L3 profile was issued for low back pain (foraminal stenosis) in April 2008 with limitations of moving with a fighting load at least 2 miles and physical fitness testing as well as no ruck sack, load bearing equipment or flak vest greater than 15 pounds.  The commander’s statement dated 8 July 2008 noted the CI’s condition and medical history and indicated although the CI had been a solid performer despite his diminished capabilities, he was unable to perform the physically demanding duties due to his condition.  At the MEB examination dated 9 July 2008, the CI reported on a DD Form 2807-1 lower back pain since 2005 and numbness in the legs “due to back.” The MEB physical examiner’s findings were incorporated in the NARSUM examination.   

The MEB narrative summary (NARSUM) dated 22 July 2008 noted the CI indicated the pain in the midline of the back had a sensation of his back being locked up with a pain intensity of 6-7/10 (10 being the worst pain).  The pain worsened when standing too long, reaching forward in a seated position, wearing a vest, or driving in a military vehicle.  After the automobile accident in 2008, the pain worsened.  Examination noted the CI got up slowly from his chair in the waiting room and with some slight difficulty as he walked back to the exam room, though no limp was noted.  There was significant tenderness to palpation over the midline over the L4 and L5-S1 levels with bilateral straight leg raise tests (to indicate nerve root irritation) with radiating pain into both deep buttocks.  The ROM measurements performed by a physical therapist were flexion 80 degrees, extension 20 degrees, right lateral flexion 35 degrees, and left lateral flexion 30 degrees, all with pain, and right rotation 30 degrees and left rotation 20 degrees without pain.  After four additional repetitions, flexion increased by 10 degrees to 90 degrees, left lateral flexion and right rotation increased by 5 degrees to 35 degrees, and left rotation increased by 10 degrees to 30 degrees, while extension decreased by 5 degrees to 15 degrees and right lateral flexion was unchanged.  All repetitive motions were with pain.  Tenderness to pressure over the L3-5 spinous processes, the bilateral facets, and the paraspinal muscles was also noted.   

At remote the VA Compensation and Pension (C&P) examination dated 24 April 2012, performed 4 years after separation, the CI reported he was unsure of the etiology of the pain, which persisted and worsened after deployment.  He used a heating pad and tried tramadol (an opioid-like medication) and Flexeril without relief.  He had a shot (for the pain) that was good and lasted for 3 months and he also used icy hot patches.  However, he reported his back hurt almost every day.  On examination the ROMs were flexion 90 degrees and extension 30 degrees with a combined ROM of 240 degrees without any objective evidence of painful motion.  There was no limitation of motion after repetition, no functional loss and/or functional impairment, and no guarding or muscle spasm.  Neurologic evaluation was unremarkable and there was no radiculopathy.  The CI did use a brace and cane occasionally.  His gait was steady and was able to walk on his toes, heels, and tandem gait without difficulty.  X-rays of the lumbar spine were negative and an MRI of the lumbar spine was normal.  

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 ~16 Mo. Pre-Sep
	PT (For MEB) ~4 Mo. Pre-Sep
	VA C&P ~4 Yrs. Post-Sep
	
Flexion (90 Normal)	FROM	80 (90 with repetition)	90	
Extension (30)		20 (15 with repetition)	30	
R Lat Flexion (30)		30 (35)	30	
L Lat Flexion (30)		30	30	
R Rotation (30)		30	30	
L Rotation (30)		20	30	
Combined (240)	-	210	240	
Comment	Tenderness on palpation; muscle spasm of the middle back	Tenderness to pressure L3-5 spinous processes, bilateral facets, and paraspinal muscles; ROMs increased with repetition,.except extension	No pain on motion; no limitation of motion with repetition	
§4.71a Rating	-	PEB 10%	VA 0%	

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating using code 5238 (spinal stenosis), while the VA, 4 years post-separation, which had limited or no probative value, assigned a 0% rating using code 5299-5237 (lumbosacral strain).  The Board sought a route for a higher rating but was unable to find one in the absence of ankylosis, diminished ROMs, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitation.  Functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  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 spinal stenosis/low back pain 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 spinal stenosis/low back pain 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 20140226, 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 XXXXXXXXXXXXXXXXXX, AR20160003644 (PD201401166)

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