RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01770
BRANCH OF SERVICE:  Army	BOARD DATE:  20150116
SEPARATION DATE:  20080219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Food Service Specialist) medically separated for lumbosacral strain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty; however, his profile authorized alternate physical fitness testing.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic lower back pain” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded hypertension to the PEB, as medically acceptable.  The Informal PEB adjudicated “lumbosacral strain” as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  IAW National Defense Authorization Act of 2008, an Administrative PEB re-adjudicated the case rating the unfitting “lumbosacral strain,” at 10% with the remaining condition continued as not unfitting.  The CI was then 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 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/Naval 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 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:

Admin PEB – Dated 20080220	VA* - (~3 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	10%	Lumbosacral Strain With Sleep Disturbance	5237	10%	20080505	
Hypertension	Not Unfitting	Hypertension	7101	0%	20080505	
Other x 0 (Not In Scope)	Other x 7 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20080911 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Lumbosacral Strain. The first record in evidence for low back pain (LBP) was dated 15 July 2002 when he was seen for pain after weight lifting.  He was treated with duty restriction and medications.  Over the course of the next year, he was seen periodically for the LBP condition.  A magnetic resonance imaging (MRI) on 5 December 2003 showed multi-level disc desiccation (degeneration commonly seen with aging) without herniation or nerve impingement.  A repeat MRI on 6 December 2004 showed persistent multi-level disc degenerative disease with a bulge at L4-5 and degenerative joint disease (DJD) at L5-S1.  This was repeated on 1 June 2006 and showed bulging at L4-5 and L5-S1 with a tear at L4-5.  Again, mild DJD was noted.  The CI was evaluated by a civilian neurosurgeon on 8 June 2006.  The CI reported constant back pain and numbness of the entire left lower extremity (LLE) once every 3 weeks.  His MRI was thought to be essentially normal for his age.  The 69 inch CI was noted to weigh 230 pounds.  He did not appear to be in any distress and muscle bulk and tone were normal.  His gait was without a limp (normal).  Spasm was absent, but the range-of-motion (ROM) was reduced in flexion and extension.  Provocative testing for nerve root irritation was negative and sensory and motor examinations were normal.  The examiner wrote “His subjective complaints are out of proportion to the objective findings.  I see no organic basis for his complaints.”  

A repeat X-ray on 24 April 2007 was normal.  The CI was seen in physical therapy on 16 July 2007.  He was noted to have normal thoracolumbar motion without pain.  There was neither tenderness nor spasm on examination.  The gait and neurological examinations were normal.  At the MEB examination, the CI reported numbness, tingling, and impaired sleep from the back pain.  On examination, the ROM was noted as normal but moderately painful.  Two signs of non-organic pain were present.  Sensory and motor examinations were normal, but the knee reflexes were absent bilaterally.  The narrative summary was dated 17 October 2007, 4 months prior to separation.  The CI reported that his back pain began when he stepped into a pothole on a run while deployed.  He was subsequently evacuated to his home station via Germany.  The pain was aggravated by activity and he also reported periodic numbness and tingling into the LLE.  He denied weakness, but endorsed an occasional limp.  On examination, he had some difficulty rising from the chair and walked slowly, but had no limp.  There was no tenderness or spasm present.  Provocative testing was positive on the left when supine (lying down), but not when sitting.  The ROM was reduced as below.  Sensory and motor examinations were normal.  The knee reflexes were again absent.

At the VA Compensation and Pension examinations performed on 5 May 2008, just over 6 months after separation, by both an orthopedist and neurologist, the CI reported that the back pain dated from his deployment when he stepped into a hole and that his LLE had some numbness and tingling.  He denied incapacitation, but was unable to continue work as a cook due to the amount of standing involved.  He used a back brace.  The ROM showed normal flexion, but some restriction in other planes as documented below.  Painful motion was present.  The sensory examination was variable.  Provocative testing for nerve root irritation was negative.  The gait and station were normal.  Strength and reflexes were slightly reduced on the left.  Electrodiagnostic testing was requested by the neurologist and was normal.  MRI did not reveal significant nerve impingement.  The opinion was that the CI’s symptoms were related to his military service.

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.

Thoracolumbar ROM
(Degrees)	PT ~7 Mo. Pre-Sep	MEB ~4 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	90	80	90	
Combined (240)	240	205	190	
Comment	Painless motion, no spasm	Painful motion	Nml gait.  Painful motion	
§4.71a Rating	0%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition at 10% using code 5237 (lumbosacral strain); the PEB noting the reduced ROM.  The Board considered the other coding options available for the back, but found no route to a higher rating.  The Board also considered if an unfitting neuropathy (nerve problem) secondary to the back condition was present at separation, but the evidence does not support such a determination.  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 of the back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended hypertension not unfitting condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The hypertension was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed and considered by the Board.  There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the hypertension conditions and so no additional disability rating is recommended.

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 lumbosacral strain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20140423, 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, AR20150010456 (PD201401770)

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