RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01350
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Cavalry Scout, medically separated for “chronic low back pain…without neurologic abnormality” with a disability rating of 10%.

CI CONTENTION:  The applicant contends he was not evaluated for obstructive sleep apnea.  The applicant’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 - 20050629	VARD - 20051213	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…
without Neurologic Abnormality	5239	10%	Degenerative Disc Disease L4-L5 with Intermittent Radiculopathy Right Leg	5243-5237	10%	20050930	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

Chronic Low Back Pain…without Neurologic Abnormality.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in July 2004 after a parachute jump.  He had back pain with numbness and tingling going down both legs.  Radiographic studies on 9 August 2004 showed grade I retrolisthesis (vertebral displacement) at L5, mild-moderate degenerative disc disease and osteophytes.  A magnetic resonance imaging on 26 August 2004 showed L4-5 moderate disc protrusion causing mild-moderate central spinal stenosis and L4-S1 degenerative disc disease.
At the time of the orthopedics clinic appointment on 1 February 2005, the CI reported back pain with bilateral lower extremity numbness.  The CI reported the pain affected his ability to lift heavy objects, walk more than ½ mile and stand more than ½ hour.  The pain also affected his sleep.  Surgery was offered.  At the family care clinic appoint on 7 February 2005, the CI declined surgery.

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 1 April 2005, 6 months prior to separation, the CI reported back pain with tingling in legs.  Physical examination showed paraspinal tenderness to palpation, straight leg raise testing (for eliciting radicular symptoms) on the right produced pain to the subpatella (below the knee).  Straight leg raise testing on the left produced left leg pain to the thigh.  Flexion and extension were limited (unspecified).  Gait was normal.  At the time of the physical therapy appointment on 5 May 2005, the CI reported low back pain with bilateral (intermittent) lower extremity numbness.  The CI reported the pain was 7-8/10.  There was painful and limited motion.

At the VA Compensation and Pension (C&P) examination on 30 September 2005, performed 1 day after separation, the CI reported sharp pain, 3-4 times per week with normal daily activities.  The pain lasted between 2 minutes and 1 hour.  He also reported right leg tingling and numbness two times per week, but did not affect his walking.  He was unable to run or lift greater than 20 pounds.  Physical examination showed a normal gait and posture, normal strength and painful but full range of motion (ROM) with no additional limitation after repetitive movements.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5239 code (spondylolisthesis), citing painful limited motion.  The VA also assigned a 10% rating using an analogous 5237 code (lumbosacral strain) based on the VA C&P examination, citing tenderness to palpation, ROM within normal limits with pain and normal neurological findings.

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) based on the service record; or for tenderness and painful motion from the VA examination.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.

BOARD FINDINGS:  In the matter of the low back 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.  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 20140317, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

26 AUG 2016

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, AR20160006674 (PD201401350)

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