RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01628
BRANCH OF SERVICE:  Army	BOARD DATE:  20150508
SEPARATION DATE:  20040624

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Interior Electrician and Water Treatment Specialist) medically separated for a low back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent P2/L3 profile and referred for an Medical Evaluation Board (MEB).  Low back pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated chronic back pain as unfitting, rated 10% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI appealed to the Formal PEB, but withdrew her appeal and was medically separated.

CI CONTENTION:  The applicant makes no specific contention in his application.  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 condition 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 20040502	VA* - (~5 Yrs Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	DDD L4-L5	5242	10%	20090602	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20090602 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Low Back Pain (LBP).  In February 2003, the CI fell from a vehicle and injured her back.  A magnetic resonance image study showed a moderately-sized L4-L5 disc herniation.  In August 2003, she underwent L4-L5 discectomy (disc removal), and after surgery she was better.  However, a few months later her symptoms increased.  In January 2004, she had another surgery on her lumbar spine.  Due to the chronic nature of her back condition, an MEB was initiated.  The MEB narrative summary (NARSUM) was dated 17 March 2004.  On physical examination, she was able to walk on her heels and toes.  Straight leg raise was negative.  Neurological exam was normal.  Range-of-motion (ROM) was measured, and is summarized in the chart below.  The NARSUM examiner’s diagnosis was:  status post-operative fusion at L4-L5, with posterior rods and pedicle screws, as well as an interbody cage.  On 19 May 2004, the CI was seen for follow-up by the neurosurgeon who had performed her spine surgery.  She reported that she continued to have some LBP on the left side of her back, as well as some pain radiating into the left thigh.  On physical examination of the back, there was mild tenderness in the left paraspinal region.  Neurological exam was normal.  Lower back ROM was not recorded.  The examining doctor recommended physical therapy, and a lumbar re-conditioning program.

The CI was medically separated from service on 24 June 2004.  On 25 April 2009, 5 years later, she had a VA Compensation and Pension (C&P) exam.  She reported that she could not sit longer than 45 minutes to an hour, and could not stand more than 2-3 hours.  She was independent in all activities of daily living including: eating, grooming, bathing, toileting, dressing, and driving.  On physical examination, her gait was normal, and the spine was normal to visual inspection.  There was some tenderness to palpation, but no spasm or guarding.  ROM was measured, and is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	NARSUM ~3 Mo. Pre-Sep
(20040317)	VA C&P ~5 Yrs. Post-Sep
(20090425)	
Flexion (90 Normal)	80	80	
Extension (30)	20	20	
R Lat Flexion (30)	45	20	
L Lat Flexion (30)	20	20	
R Rotation (30)	(not recorded)	20	
L Rotation (30)	(not recorded)	20	
Combined (240)	(cannot calculate)	180	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and the VA chose different coding options for the LBP condition, but both assigned a 10% disability rating.  After reviewing the data from the back exams noted above, the Board determined that the March 2004 MEB exam was much closer to the DOS, and therefore had greater probative value.  At that exam, thoracolumbar forward flexion was 80 degrees.  Combined thoracolumbar ROM could not be assessed, because rotational motion (left and right) was not recorded by the examiner.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 10% rating is warranted for thoracolumbar forward flexion greater than 60 degrees, but not greater than 85 degrees.  Therefore, the Board determined that a rating of 10% was appropriate for the LBP condition.  The Board tried to find a path to a higher rating.  There was not sufficient evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The Board considered using other diagnostic codes which could be applied to the CI’s condition.  The other VASRD codes that were considered did not result in a higher rating, because there was insufficient evidence of a seriously disabling spinal impairment that would justify a higher rating.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had neurological symptoms, but there was no performance-based evidence that the neurological condition impacted her military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the back pain 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 noted above, PEB reliance on the USAPDA pain policy may have been operant in this case and the chronic back pain condition was adjudicated independently of that policy by this Board.  In the matter of the chronic back pain 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.

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 20140409, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013460 (PD201401628)

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:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA