RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01789
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041104

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Administrative Specialist and Helicopter Repairer, medically separated for “chronic radiating low back pain(LBP),” with a disability rating of 20%.  

CI CONTENTION:  “I request that all MEB/PEB conditions considered for being unfit for duty be examined and rated.”  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 – 20041007	VARD – 20051222	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating LBP	5243	20%	Lumbar Degenerative Disc Disease (DDD), L4-5, L5-S1	5242	10%	20051115	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Radiating LBP.  According to service treatment record, the LBP condition began in May 2001 after a sea kayak accident while on active duty.  A radiographic study showed early spondylosis.  A Magnetic resonance imaging (MRI) study in July 2004 showed significant narrowing of L4-5, L5-S1 and a prominent herniated disc with an annular tear at L4-5.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The Medical Evaluation Board (MEB) forwarded “Herniated Nucleus Pulposus L 4-5” for PEB adjudication.  

The MEB narrative summary (NARSUM) orthopedic examination on 3 August 2004 approximately 3 months prior to separation noted complaints of constant and moderate back pain with occasional tingling that radiated into the arches of both feet and occasional leg weakness.  The examiner stated that the CI’s functional limitations and pain prevented him from performing his duties.  Examination documented that there was normal muscle strength with normal reflexes and sensory testing.  The CI was able to walk on both heels and toes, and provocative testing for radiculopathy was negative.  The remainder of the physical examination findings are summarized in the chart below.  

At the VA Compensation and Pension (C&P) examination in November 2005, performed approximately 13 months after separation, the CI reported intermittent radicular pain that radiated into both lower extremities.  He denied any incapacitating episodes.  Reflexes were symmetrical and sensory and motor exams were normal.  There was rhomboid (thoracic spine area) spasm with the examiner stating that “gait is abnormal in that he has a slight limp primarily due to back pain.”  The physical examination findings are summarized in the chart below.  

The range of motion (ROM) examinations 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)	Ortho/MEB ~3 Mo. Pre-Sep	MEB 2808~3 Mo. Pre-Sep	VA C&P ~13 Mo. Post-Sep	
Flexion (90 Normal)	45	60	70	
Combined (240)	180	-	160	
Comment	-	Painful motion; tenderness	Painful motion; rhomboid spasms, tenderness; antalgic gait; +Deluca	
§4.71a Rating	20%	20%	10%-20% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5243 code (intervertebral disc syndrome), citing a forward flexion of 35 degrees (likely typographical error as the source goniometric flexion was 45 degrees).  The VA assigned a 10% rating using the 5242 code (degenerative arthritis of the spine) based on the VA C&P examination approximately 13 months after separation, citing ROM criteria.  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the MEB NARSUM and MEB DD Form 2808 examinations.  Additionally, the Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain treated conservatively, and there were symptoms of radiating pain, tingling that radiated into both feet (paresthesias) and feelings of occasional leg weakness documented on the MEB NARSUM; however, examinations indicated normal strength and reflexes, and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  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).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic radiating LBP condition.  

BOARD FINDINGS:  In the matter of the chronic radiating LBP 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 20131023, 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 AR20160010648 (PD201401789)

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