RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01494
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Signal Support Systems Specialist, medically separated for “chronic persistent low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The applicant contends that he should have been given a higher rating for his condition.  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 - 20041209	VARD - 20050114	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Persistent Low Back Pain…	5299-5243	10%	Degenerative Disc Disease Thoracolumbar Spine S/P Surgery	5242	10%	20041202	
			Scar, Back	7805	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

Analysis Summary: 

Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain began in January 2000 during Basic Combat Training, with no specific injury or trauma reported.  He was treated with non-steroidal anti-inflammatory medication, duty restrictions, and eventual physical therapy (PT), but the back pain continued.  In June 2002 radiographic studies showed vertebral disc bulges in his lower back.  Chiropractic treatment was attempted with no relief.  Electrodiagnostic studies (EMG/NCV) performed in August 2002 were negative for radiculopathy.  Conservative treatment continued to provide no relief.  A neurosurgeon eventually recommended surgery (performed 20 April 2004) to relieve pressure on two bulging discs and pressure on nerves in his lower back.  
Following surgery, the reported range of motion (ROM) progressed from flexion and extension “moderately limited” (1 month after surgery) to “slightly reduced” as of 2 July 2004 (6 months prior to separation).  By 3 September 2004 (4 months prior to separation), the CI indicated that prior complaints of his right leg “giving out when he stands up from a sitting position” had improved.  Despite this treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of his military specialty, so he was referred for an MEB.  At the PT examination on 20 September 2004 (3 months prior to separation), the CI reported symptoms unchanged.  The physical examination revealed the ability to fully squat and to heel and toe walk with some difficulty.  ROM was “full with discomfort” and “50-70% of extension with pain.”  There was some swelling and mild tenderness at the incision.  

The MEB NARSUM examination on 16 November 2004 (1 month prior to separation and performed concurrently with the MEB examination, as reported on DD Forms 2807-1 and 2808) noted complaints of continued low back pain but no bowel or bladder dysfunction.  The CI reported numbness in the right leg, and that the same leg “goes out on occasions.”  The physical examination revealed no radicular symptoms.  Tests for sciatic nerve irritation were negative (the sciatic nerve is the long nerve running from the back down each of the legs).  Strength, reflex, sensation and gait were all normal.  

At the VA Compensation and Pension (C&P) examination on 2 December 2004 (1 month before separation), the CI reported constant “middle low backache that…doesn’t travel anywhere else…,” rated 8/10 appeared spontaneously, with stress, or with physical activity.  The pain was relieved with rest and opioid pain medication.  The CI was not sure how many times he had been incapacitated in the previous year, but estimated it at “several times for several days total” and indicated he had lost work six times a month.  He also reported functional impairment was limited standing.  X-rays reported the presence of “minimal levoscoliosis” (curving of the spine to the left side of the body).  Physical examination showed normal strength, reflexes, sensation, and gait.  Testing for irritation of the sciatic nerve was negative.  There was no spasm and no radiating pain, no tenderness and no intervertebral disc syndrome.  The scar was stable and not tender.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5243 code (analogous to intervertebral disc syndrome), citing limitation of flexion and normal gait (as reported on the NARSUM).  The VA also assigned a 10% rating but used the 5242 code (degenerative arthritis of the spine) based on the VA C&P examination performed 1 month prior to separation, citing limitation of forward flexion and/or combined ROM measurements.  

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) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) as reported on the NARSUM and VA examinations.  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 that basis.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also considered whether additional disability rating might be justified for peripheral nerve impairment due to radiculopathy.  The CI had herniated discs with radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records.  Examinations indicated normal strength, reflexes and gait and the sensory changes did not affect his job.  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.  

The Board considered whether the rating for the surgical scar, as awarded by the VA, might be appropriate for reconsideration.  Any ROM limitation from the scar was considered under the spine formula rating, and the scar was not tender at the VA examination.  There was no evidence that the surgical scar interfered with fitness for military duty.  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 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 pain 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 20140303, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			

SAMR-RB

JUL 2 8 2016

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXX, AR20160006749 (PD201401494}

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