RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01612
BRANCH OF SERVICE:  Army	SepAration date:  20040722

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Military Police) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  Scheuermann’s Kyphosis was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic subjective back pain as unfitting, rated 10% with application of Army Regulation (AR) 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I believe that this condition was rated too low.”  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 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 IPEB – Dated 20040413	VA* - (~ 18 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain, Due to Scheuermann’s Kyphosis	5299-5237	10%	L4-L5 Disc Bulge (Herniation)	5299-5237	20%	20051231	
			Right L4/5 Lower Extremity Radiculopathy Discomfort Associated with L4-L5 Disc Bulge (Herniation)	8699-8620	10%	20051231	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060125 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Condition.  The service treatment record documented that the CI was instructed to have his back evaluated while on a 2-week leave from Operation Iraqi Freedom (OIF).  At a primary care encounter, the CI complained of 3 months of low back pain with no precipitating injury.  He reported significant lower back pain and a “little bit” down his legs.  The back exam was unremarkable except for some pain in his lower back bilaterally.  Straight leg raise (SLR) tests (assess nerve root compression by a herniated disc) were mildly positive (right greater than left).  The impression listed back pain etiology undefined.  At a subsequent encounter, the CI complained of back pain and bilateral leg numbness/tingling from waist down.  He denied incontinence (inability to control urination or defecation).  He ambulated with an antalgic (assuming a gait to lessen pain) gait but reported he was able to complete the physical fitness test.  The back exam revealed full range-of-motion (ROM) with truncal tremulousness (trunk trembling).  The ROM was flexion of 90 degrees (90 normal) and bilateral rotation and lateral flexion of 45 degrees (normal 30).  There was normal and symmetric strength (5/5), sensation, and deep tendon reflexes (DTRs) without pathological reflexes.  The examiner recorded an objectively normal exam with subjective numbness/tingling in a non-physiologic pattern.  The assessment listed back pain with an unremarkable exam, save for pronounced intention tremulousness of trunk and bilateral legs.  Physical therapy (PT) measured active ROM with a goniometer and documented repetitive thoracolumbar flexion of 50, 45, and 35 degrees.  

The MEB narrative summary by orthopedic surgery, 4 months before separation, recorded a history of intermittent low back pain with periodic radiation to his legs.  The physical exam recorded normal strength (5/5), sensation, and DTRs without pathological reflexes.  The SLR tests were negative.  The examiner cited the ROM measured by PT.  The diagnostic imaging studies (X-rays, CT, and MRI) showed Scheuermann's kyphosis (anterior wedging of ≥5 degrees in at least three adjacent vertebral bodies [hunchback appearance]).  There was no evidence of foraminal stenosis (nerve root opening narrowing) or facet joint defects.  The diagnosis listed Scheuermann's kyphosis.  A lumbar spine X-ray showed anterior wedging of L1 and minimal compression of L2.  The lumbar spine MRI, 13 months after separation, showed a small left L4-L5 disc protrusion with minimal displacement of the left L5 nerve root.  A bilateral lower extremity electrodiagnostic study showed a right L4-L5 radiculopathy (irritation or injury of a nerve root) without significant ongoing denervation (interruption or loss of nerve supply).

The VA Compensation and Pension (C&P) exam, 18 months after separation, recounted the history, evaluations, and interventions.  The CI complained of chronic, 8/10 lower lumbar pain.  Pain was exacerbated to 10/10 with prolonged standing, walking for greater than 6 hours, stooping, kneeling, bending, or lifting.  The CI had intermittent radicular symptoms when the lumbar pain was 10/10.  Symptoms were described as radiating discomfort down the posterior thighs to the knees with a nonspecific numbness about the distal legs.  He denied erectile dysfunction or incontinence.  The CI experienced a lumbar "flare-up" 8 months prior, did not take pain medications, but took a muscle relaxant (Flexeril) daily.  He did not use a lumbar brace or device for ambulating and the physical exam revealed a normal gait.  There was no spinal ankylosis (joint stiffening or immobility) or para-thoracic muscle spasms.  There was a relative loss of normal lumbar lordosis (anterior spine curvature) and diffuse bilateral lumbar tenderness.  Lumbar active ROM was flexion of 35 (normal 90), extension of 10 (30), left lateral flexion of 25 (30), and right lateral flexion of 20 degrees (30).  The SLR tests were negative and except for left knee strength being limited by pain, strength was normal.  The DTRs were normal and symmetric and pathological reflexes were absent.  There were bilateral leg sensory deficits to pinprick, light touch, and vibration.  While a chest X-ray showed a minimal endplate abnormality of a vertebral body, the cervical and thoracic spine X-rays were unremarkable.  The diagnoses listed a L4-L5 disc bulge (herniation) and intermittent bilateral radicular discomfort.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition at 10% with code 5299-5237 (Analogy-lumbosacral strain).  The PEB cited chronic back pain due to Scheuermann's kyphosis, no neurologic abnormality, and thoracolumbar ROM limited by pain.  The VA rating decision cited the C&P exam 18 months after separation, rated the low back condition at 20% with codes 5299-5237 (Analogous for lumbosacral strain).  The VARD cited Scheuermann's kyphosis, low back pain without precipitating injury, SLR tests moderately positive, intermittent lower extremity radicular discomfort, right L4-L5 radiculopathy by electrodiagnostic study, sensory deficit, relative loss of lumbar curvature, ROM, active lumbar flexion, lumbar tenderness, no muscle spasm, no spinal joint fusion, 5/5 strength, symmetric reflexes, no back brace, no pain medications, anterior vertebral body wedging by X-ray, and left L4-L5 disc protrusion by MRI.

The Board agreed a 10% rating was supported based on functional loss (§4.40) or painful motion (§4.59).  Other routes to a rating higher than the PEB’s 10% were considered, but there was no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  Board members agreed that the limitation of motion in the PT exam and C&P exam were consistent with 20% based upon the general rating formula for diseases and injuries of the spine.  The Board assigned more probative value to the PT exam with goniometer measured thoracolumbar ROM than the C&P exam with lumbar ROM.  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).”  The critical decision is whether or not there was significant motor weakness which would impact military occupation specific activities.  There was no evidence that motor weakness or sensory loss 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.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommended a disability rating of 20% for the low back condition.

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.  As discussed above, PEB’s like reliance on AR 635-40 for rating the low back condition was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 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	
Chronic Subjective Back Pain, Due to Scheuermann’s Kyphosis	5299-5237	20%	
COMBINED	20%	

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
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, AR20160003224 (PD201401612)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA