RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01296
BRANCH OF SERVICE:  Army	BOARD DATE:  20150505
SEPARATION DATE:  20041021

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Infantryman) medically separated for low back pain (LBP).  The 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,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (major depressive disorder [MDD], single episode) for PEB adjudication.  The Informal PEB adjudicated “chronic subjective low back pain, without neurologic abnormality” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The MDD condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was only rated for my lower back, which prevented me from performing all of my duties as an Infantry Soldier.  But the more severe issue with my left TMJ was not considered.  Also, I tried very hard to get a RTD (Return to Duty).  I pushed myself and down-played my pain and tried to convince the medical staff that I would be able to continue to serve.  Enclosed is my VA rating info.”

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 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:

IPEB – Dated 20040922	VA* - (9 Days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Low Back Pain, Without Neurologic Abnormality	5299-5237	10%	Lumbar Strain	5237	20%	20041012	
Other x  1 (Not In Scope)	Other x 7	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20041220 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Low Back Pain Condition.  The CI reported that on 25 April 2003, while doing a ruck march, he fell on his left knee with a 70-pound ruck on his back.  He developed LBP and shooting pain down the posterior thigh and lateral foot with numbness.  Magnetic resonance imaging showed mild disk desiccation, loss of disk space height and broad based disk bulging at L4-5 and L5-S1.  He deployed to Iraq and participated in physical therapy and received medications but the pain became so severe that he was medically evacuated to Germany and then to the United States. He was treated with steroid injections and a TENS unit, but LBP persisted.

At the narrative summary, dated 28 June 2004, (performed 4 months prior to separation), the CI reported he had intermittent radiating pain in the left buttocks.  He reported erectile dysfunction which did not appear to be a function of neurologic consequences from the back pain “since erection was possible with medication.”  Physical exam showed normal gait and posture.  He had active range-of-motion (ROM), demonstrating forward flexion of 50 degrees (normal 90), combined 155 degrees (normal 240) with painful motion.  Neurologic and sensory exams were intact.  Motor strength was 5/5 bilaterally and equal with normal bulk and tone.  He could walk on his heels and toes.

At the VA Compensation and Pension exam on 14 October 2004 (performed a week prior to separation), the CI reported constant pain in the lower back that traveled to the left leg.  The pain was burning and sharp with a level of 5 out of 10 could be spontaneous or due to physical activity.  Rest and medication relieved it.  The CI reported incapacitating episodes up to 6 times per year, lasting for 4 days.  In the previous year, there were 6 incidents of incapacitation for a total of 16 days and he lost time from work.  He took medication for impotence that helped sometimes.  The physical exam showed a normal gait and no evidence of muscle spasm or radiating pain on movement.  There was tenderness in the lower back and positive straight leg raising bilaterally (test for radiating symptoms).  ROM was limited to forward flexion of 45 degrees and combined 120 degrees with no ROM change on repetition.  There was no ankyloses of the spine and no evidence of intervertebral disc syndrome of the lumbar spine.  Motor and sensory function was normal.  Reflexes of the knee and ankle jerks were 1+ bilaterally.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5237 code (lumbosacral strain), while the VA rated the condition 20%, also coded 5237.  The Board agreed that the limitation of flexion in evidence (both MEB and VA) supported a 20% rating, but no higher, for forward flexion greater than 30 degrees but not greater than 60 degrees.  Although the CI reported incapacitating episodes, there was no documentation of periods of physician prescribed bed rest for any rating under VASRD code 5243 (intervertebral disc syndrome).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic low back pain condition.

The Board finally deliberated whether an additional disability was justified for peripheral nerve impairment.  The CI reported intermittent radiating pain in the lower back that traveled to the left leg.  However, there were no complaints of muscle problems, and objective peripheral nerve, muscle strength, and reflex testing was normal.  Pain (whether or not it radiates), stiffness, or aching is rated under the general formula for the spine and was considered in the spine rating above.  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.  There was insufficient evidence in this case of functional impairment attributable to peripheral neuropathy that adversely impacted duty performance.  The Board therefore concluded that no peripheral nerve (radiculopathy) condition could be recommended for additional disability rating.

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.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

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

CONDITION	VASRD CODE	RATING	
Low Back Pain	5299-5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140312, 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, AR20150013434 (PD201401296)

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			XXXXXXXXXXXXXXX
				Deputy Assistant Secretary of the Army
				     (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA