RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01721
BRANCH OF SERVICE:  Army	BOARD DATE:  20140912
SEPARATION DATE:  20080812

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92Y10/Unit Supply Specialist) medically separated for low back pain (LBP) with radiation to the right lower extremity (RLE).  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forward LBP with radiation to the right lower extremity condition, characterized as “low back pain secondary to degenerative disc disease” and “probable SI radicular symptoms” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the “LBP with radiation to the RLE” as unfitting, rated at 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”  

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 conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back pain with radiation to the RLE condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20080602	VA - (3 Wks. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain …
with Radiation to the Right Lower Extremity	5299-5243	10%	Degenerative Disc Disease Lumbar Spine L3-L5	5243-5237	10%	20080724	
			Right Lower Extremity Sensory Radiculopathy Associated with Degenerative Disc Disease Lumbar Spine L3-5	8699-8620	0%	20080724	
Other x 0 (Not in Scope)	Other x 6	20080724	
Rating:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20081205

ANALYSIS SUMMARY:

Low Back Condition.  Absent direct trauma, the CI first reported LBP in early 2006 that persisted throughout the majority of his service career.  X-ray images revealed degenerative disc disease of his lumbar spine.  He reported sharp LBP, worse with running or increased activities.  Initially, he “denied pain radiating to his legs or any tingling or numbness sensation;” however, a single entry from pain management (nearly 5 months prior to separation) summarized a subjective complaint of radiating pain into his right leg.  There was no consistent subjective or objective evidence of radiculopathy present on subsequent exams.  Surgery was not indicated and conservative treatment of medication, manipulation, physical therapy and [steroids] injections did not provide long-term symptom relief.  There were no documentations of incapacitation episodes in evident.  There were frequent references in the service treatment records noting the association of his obesity to his back LBP’s symptoms.  

During the MEB narrative summary examination dated 30 April 2008, the CI reported pain while running or lifting [weights].  There was no comment about having current associated radicular symptoms and he denied associated weakness.  The physical examination revealed low back tenderness without [muscle] spasms.  There was no limitation to thoracolumbar range-of-motion (ROM) and his gait was normal.

At the VA Compensation and Pension general medical examination dated 24 July 2008, the CI endorsed a constant back pain whereby, “the pain is present daily” with intermittent symptoms into both hips and thighs.  The description of any leg involvement was poorly documented and vague.  Specifically, the examiner documented “The pain in the lower back sometimes feels as if it is going towards the right hip and toward the right thigh but no typical radiculitis signs or symptoms” and “presently, the pain in the low back sometimes goes towards the left hip also a little bit, but it stays in the gluteal area.”  Additionally, it was noted that “…the radiation down the lower extremities is not very clear if [he] has a dermatome distribution.”  

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.

DOS 20080812
Thoracolumbar ROM
(Degrees)	MEB ~ 3.5 Mo. Pre-Sep
(20080430) 	VA C&P ~ 3 Wks. Pre-Sep
(20080724) 	
Flexion (90 Normal)	90	75	
Extension (30)	30	22	
R Lat Flexion (30)	30	25	
L Lat Flexion (30)	30	22	
R Rotation (30)	30	42	
L Rotation (30)	30	42	
Combined (240)	240	228	
Comment	-	normal gait; normal posture; 	
§4.71a Rating	0%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition differently, they both utilized (in various combinations) the same 5243 code (intervertebral disc syndrome) and rated the LBP condition at 10%.  Board members agreed that sufficient evidence of limitation of motion was present to justify the PEB’s 10% rating IAW VASRD §4.71a.  The Board then considered application of §4.40, which allows for a higher rating if evidence of additional functional loss is present.  Member’s concluded however that there was no examination in evidence on which to base a conclusion that repetitive motion resulted in any additional disability.  The 5003 arthritic code was also considered, but absent incapacitating episodes, the maximum rating would render 10%, providing no additional benefit above the CI’s current PEB rating.  

Therefore, Board members agreed that a rating higher than 10% was not justified.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain.

Right Lower Extremity Condition.  The Board considered whether an additional rating could be recommended under a peripheral nerve code, for a residual radiculopathy at separation.  Board precedence requires a functional impairment tied to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine cases.  Any pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The subjective sensory component in this case had no functional implications, and no motor weakness was in evidence.  Thus there is no evidence of a separately ratable functional impairment (with fitness implications) from a residual radiculopathy.  The Board cannot support a recommendation for an additional disability rating on this basis.

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 low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the RLE radiculopathy condition and IAW VASRD §4.124a, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20140417, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
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, AR20150006330 (PD201401721)

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