RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01609
BRANCH OF SERVICE:  Army 	SEPARATION DATE: 20040903 

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

CI CONTENTION:  The CI contends his VA rating was higher than the DoD rating.  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 - 20040608	VARD - 20070209	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Degenerative Disc Disease Lumbar Spine	5243	0%	20070109	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the chronic low back pain condition began in August 2001 during Basic Training, and was not a consequence of trauma or injury.  Radiographic imaging studies in October 2003, showed some minor degenerative disc disease (slight bulging) and some mass effect on the L5 nerve roots.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic low back pain, nonradicular” for PEB adjudication.

At the MEB NARSUM examination on 18 May 2004 (approximately 4 months prior to separation), the CI reported constant low back pain.  Physical examination showed some tenderness at the mid L4-L5 level, but was silent regarding muscle spasm.  Range of motion (ROM) measurements showed thoracolumbar flexion of 90 degrees (90 normal) and combined ROM of 225 degrees (240 normal).  The CI could walk on heels and toes without difficulty, and the lower extremities were without motor or sensory deficits, or signs of nerve root irritation.

At the time of a pain management encounter on 7 June 2004 (3 months prior to separation), the CI denied radiating symptoms.  The examiner recorded an antalgic gait and right paraspinal muscle tenderness.  There was no mention of guarding or muscle spasm.  Lower extremity neurologic findings were normal.  A neurosurgery evaluation 23 July 2004 reported a 3 year history of constant but waxing and waning pain.  He complained of right leg weakness and numbness in both legs.  Physical examination showed tenderness and some diminished sensation in one or both feet.  Lower extremity muscle strength was normal and a test for possible nerve root irritation was negative.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 10% coded analogously to 5237 (lumbar strain), citing localized tenderness.  The VA rated the chronic back pain condition 0%, effective in 2006, coded 5243 (intervertebral disc syndrome) based on a VA C&P examination over 2 years after separation, which was not probative to the time of separation in the Board’s deliberations.  The VA later corrected the 0% rating to 10% based on that same exam.  The Board agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM examination, or for the presence of tenderness.  There was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula.  There was likewise no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve 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 low back condition.  

BOARD FINDINGS:  In the matter of the chronic 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 20140409, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXXXX AR20160010519 (PD201401609)

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