RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-01408
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081016

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Human Resources Specialist) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic mechanical low back pain with L4 radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (bilateral elbow pain; right knee pain; and hammertoes) for PEB adjudication.  The Informal PEB adjudicated his 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, right knee and bilateral foot conditions continue to worsen and negatively impact his daily activities.  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 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 20080724	VA* - (~14 Days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical LBP…	5299-5237	10%	Degenerative Changes…Spine…	5243-5242	20%	20081002	
			Radiculopathy, L4, Lumbar Spine	8520	0%	20081002	
Right Knee Pain	Not Unfitting	Patella Tendonitis, Right Knee	5260	10%	20081017	
Hammertoes, Bilaterally	Not Unfitting	Bilateral Hammertoes…	5282-5010	10%	20081002	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 12 	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20090716 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Mechanical Low Back Pain.  The record shows a history of back pain beginning in 2004.  This was attributed to carrying another soldier over his shoulders during a field training exercise.  An MRI on 31 March 2006 revealed degenerative disc disease (DDD) at L5S1, but electrodiagnostic studies on 8 May 2006 were normal.  He was treated with medications, duty restrictions, and physical therapy.  In family practice on 19 November 2007, the neurological examination and gait were normal.  Tenderness was present, but reduced motion not documented.  On 31 March 2008, normal, pain free lumbosacral motion was documented.  A MEB was recommended, but not accomplished.  This was noted in early 2008 and MEB initiated at that time.  An MRI of the lumbar spine accomplished on 26 April 2008 had noted a small disc at T11-12 without nerve impingement.  The narrative summary (NARSUM) was dated 11 June 2008, 4 months prior to separation.  The CI reported increased pain with prolonged standing, climbing/descending stairs, and walking over 1-1/2 miles.  On examination, his gait was normal including toe and heel walk.  Tenderness was present over the spine, but not the muscles.  Spasm was not documented.  The neurological examination was normal.  The range-of-motion (ROM) was normal and only painful at extreme extension (at VA normal limits).  However, the MEB examination done the same day recorded that side to side motion was decreased and also that it was normal.  The CI was seen in physical medicine on 14 July 2008.  Flexion was noted to be limited, but not quantified.  The neurological examination was normal as was the gait.  Atrophy was not present.  Electrodiagnostic testing showed evidence of a chronic left L4 radiculopathy.  He reported pain at the end of motion in all planes as documented below.  Spasm and tenderness were absent.  X-rays were unremarkable.  

At the VA Compensation and Pension (C&P) examination performed on 2 October 2008, 14 days prior to separation, the CI stated that he used no assistive devices.  He reported chronic pain without flares or incapacitation.  His posture and gait were normal.  The ROM was reduced and is charted below.  The CI was next seen in physical medicine at the VA on 30 April 2009, just over six months after separation.  He was noted to have diffuse tenderness on the left, but full functional ROM of the trunk (thoracolumbar) with a non-antalgic (normal) gait.  In physical therapy one month later, this flexion was noted to be “slightly limited” and within functional limits for flexion.  The goniometric 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 ~6 Mo. Pre-Sep	VA C&P ~14 Days Pre-Sep	
Flexion (90 Normal)	90 95 95 (90)	60	
Combined (240)	240	195	
Comment	Extension limited by pain	Pain at end motion	
§4.71a Rating	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10%, coded 5299-5237 (lumbosacral strain).  The PEB specifically noted that an unfitting radiculopathy was not present.  The VA rated the back at 20%, coded 5243-5242 (intervertebral disc syndrome – degenerative arthritis of the spine) and also rated the CI at 0% for the L4 radiculopathy, coded 8520 (paralysis of the sciatic nerve).  The Board noted that the VA C&P evaluation supports a 20% rating for limited flexion, but that this is not consistent with the other records in evidence, both before and after separation.  The MEB measurements are therefore assigned a higher probative value and support the 10% rating adjudicated by the PEB.  The Board then considered if an unfitting radiculopathy was present at separation.  Electrodiagnostic studies did indicate a chronic L4 radiculopathy, but the physical examination was consistently normal and support the PEB adjudication than an unfitting radiculopathy was not present at separation.  The painful motion present on some examinations and any radiation of pain are subsumed under the general spine 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 chronic mechanical low back pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right knee pain and bilateral hammer toe conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Neither condition was profiled nor judged to fail retention standards.  Neither was specifically implicated in the commander’s statement.  Both were reviewed and considered by the Board.  There was no performance based evidence from the record that either condition significantly interfered with satisfactory duty performance at separation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for either contended condition and so no additional disability ratings are recommended.  

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 chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right knee pain and bilateral hammer toe conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20140318, 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, AR20160003108 (PD201401408)

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