RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX 	CASE:  PD-2014-01181
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060825

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve, E6, Infantryman, medically separated for “chronic low back pain,” with a disability rating of 10%.

CI CONTENTION:  He had other medical issues at the time of his MEB, but was told that he could not add them.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20060613	VARD - 20080611	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Chronic Lumbar Strain	5003-5237	10%	20070928	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Low Back Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s chronic low back pain condition began in 1988 when he was involved in a motor vehicle accident.  He was activated as an Reservist in October 2004 and noticed a twinge in his back after putting on body armor.  A diagnostic imaging (MRI [magnetic resonance imaging]) study on 13 October 2004 showed mild bulging intervertebral discs at L2-L3, L3-L4, L4-L5 and L5-S1 with impingement on the thecal sac (membranous sheath around spinal cord) at each level respectively.  There was borderline narrowing of the neuroforamina (nerve root opening) at the L3-L4 and L4-L5 levels.  Diagnostic imaging (X-ray) studies on 28 October 2004 showed large osteophytes (bone spurs) along the anterior margin of L3, L4, and L5 vertebra and discovertebral disease.  An MRI on 10 January 2005 showed degenerative disc disease, disc bulging at L2-L3 (R>L), L3-L4, L4-L5 (L>R) with moderate left foraminal stenosis, and an inferior L1 Schmorl’s node (protrusions of disc cartilage through vertebral endplates).  The CI received epidural steroid injections of his lower back on 1 November 2005 and again on 22 March 2006.  There was no surgical indication.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic low back pain” for PEB adjudication.

At the MEB NARSUM examination dated 12 October 2005, 10 months prior to separation, the CI reported low back pain that occasionally radiated to his left leg.  He reported he had back pain 8 hours a day when he was awake and the pain caused him to awaken 2-3 times per night.  The pain was rated at 5-7/10.  The pain was aggravated by sitting for prolonged periods or by coughing and sneezing.  He was unable to run or walk for physical training, march with equipment, or wear combat protective equipment.  The physical exam showed tenderness to palpation over the mid lumbar spine.  The CI had a normal spinal contour, strength, sensation, and reflexes, and examination maneuvers for radicular signs were negative.  Thoracolumbar ROM after repetition was limited by pain as recorded in the chart.  

At the VA Compensation and Pension (C&P) examination on 27 September 2007, performed 13 months after separation, the CI reported low back pain aggravated by prolonged standing, walking, bending, stooping, and lifting heavy weights.  The low back pain radiated to the left hip.  The physical exam showed the CI had a normal gait, no spine tenderness, no paraspinal muscle spasm, and a normal spinal contour.  The CI had normal strength, sensation, and reflexes, and examination maneuvers for radicular signs were negative.  Lumbosacral ROM after repetition was limited as recorded in the chart.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10% coded 5237 (lumbosacral strain), citing painful motion and tenderness or soreness to palpation.  The VA also rated the low back condition 10% coded 5003-5237 (degenerative arthritis-lumbosacral strain), based on the VA C&P examination 13 months after separation, citing limitation of forward flexion.  While the 12 October 2005 NARSUM narrative listed lumbosacral ROM measured with an inclinometer, the associated 12 October 2005 ROM form documented thoracolumbar ROM measured with an inclinometer (flexion and extension) and a goniometer (lateral flexion and rotation).  The Board assigned more probative value to the NARSUM exam because it measured thoracolumbar ROM with an inclinometer and a goniometer versus the lumbosacral ROM documented in the C&P exam with no goniometer specified.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the MEB NARSUM.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported intermittent pain radiating to his hip and buttocks, however the electrodiagnostic studies showed no evidence of neuropathy (peripheral nerve injury or irritation) or radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the chronic low back pain condition, coded 5237.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160008285, XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR)
·reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure