RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01928
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E7 (Chemical Operations Specialist) medically separated by the Informal Physical Evaluation Board for low back pain with a disability rating of 10%.   

CI CONTENTION:  The applicant requests the Board consider all conditions.  The applicant’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 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 - 20080516	VARD - 20090612	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5243	10%	Multilevel DDD of Lumbar Spine	5242	10%	20090220	
			Intermittent Radiculopathy LLE	8720	NSC	20090220	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Low Back Pain Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in October 2007 during a hazardous materials (HAZMAT) course which required heavy lifting and strenuous work but there was no specific injury.  The back pain was accompanied by pain radiating into the left leg.  Magnetic resonance imaging (MRI) in November 2007 showed multilevel moderate to severe degenerative disc disease with a herniated disc at the L4-5 level protruding to the left. 

A pain clinic examination 10 January 2008 noted decreased sensation suggestive of radiculopathy; however examination maneuvers to elicit radicular signs and symptoms were negative.   At the Neurosurgery examination on 22 January 2008, the CI reported LBP, loss of strength and numbness, weakness and tingling in the left lower extremity.  The physical exam showed findings of normal gait, normal lower extremity strength, and normal reflexes.  There was report of intermittent tingling and numbness into the dorsum of the left foot.  No surgery was recommended at that time.  Electro-diagnostic studies (EMG/NCV) on 23 January 2008 were negative for evidence of radiculopathy. 

At the MEB examination (recorded on DD Form 2808) dated March 2008, approximately 4 months prior to separation, the examiner noted tenderness at L5-S1 and a normal gait.  Straight leg raise to 45 degrees on the left was reported as positive but did not specify whether the radiating symptoms were provoked.  At the time of the Physical Therapy (PT) range-of-motion examination for the MEB on 17 April 2008, approximately 2 months prior to separation, the CI reported his pain was 50% better but he still felt a “pull” in the left leg when walking.  On examination, the straight leg raise test for radicular symptoms was positive.  There was pain with the thoracolumbar range-of-motion examination shown in the chart.  

Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a Medical Evaluation Board (MEB).  The MEB NARSUM exam on 21 April 2008 approximately 2 months prior to separation noted complaints of persistent unrelenting LBP.  The examiner noted functional limitations of an inability to wear his chemical protective gear, an inability to maintain a position for 30 minutes and an inability to perform many of his MOS duties.  On examination there was muscle tenderness and spasm noted.  

At the VA Compensation and Pension (C&P) examination on 20 February 2009, performed approximately 8 months after separation, the CI reported low back pain with radiation to the left lower extremity with the pain rated at 5-8/10.  The pain was made worse by lifting more than 20 pounds, or walking about 1/2-mile.  At the time of the examination there was no radiating pain present.  There was tenderness and spasm but the gait was normal. Straight leg raise test was negative for radiating pain.  Lower extremity sensation and reflexes were normal.  Lower extremity strength was notes mildly decreased but reported as normal in other portions of the examination.  The thoracolumbar range-of-motion examination recorded in the chart was accompanied by painful motion.  There was no fatigue, weakness, lack of endurance, or incoordination seen during the examination.  

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)	PT ~2 Mo. Pre-Sep	VA C&P ~8 Mo. Post-Sep	
Flexion (90 Normal)	 90 	80	
Combined (240)	220	205	
Comment	After 3 repetitions painful motion; Left straight leg raise was positive; normal  reflexes 	After 3 repetitions painful motion; Tenderness and spasm; Gait normal.
Strength 4/5; Reflexes nml	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5243 code (Intervertebral disc syndrome), citing tenderness to palpation and pain beginning at 80 degrees for flexion which met the 10% rating criteria.  The VA also assigned a 10% rating using the 5242 code (degenerative arthritis of the spine) based on the VA C&P examination approximately 8 months after separation, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM and VA exams.  The examinations noted the presence of muscle spasm, however, it was not severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  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 multilevel DDD with radicular pain and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait 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.  Electro-diagnostic studies were negative for radiculopathy.  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 LBP condition.  

BOARD FINDINGS:  In the matter of the 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 20140429, 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 XXXXXXXXXX, AR20160003815 (PD201401928)

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