RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-01942
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20031201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E4, Motor Transport Operator, medically separated for a chronic low back pain (LBP) condition, rated at 20%.  

CI CONTENTION:  The CI asserts that he did not get the option to consider retirement.  He contends due to his back injury he has not been able maintain employment since discharge.  Additionally, he indicates he is currently service connected and rated at 90 percent by the Veterans Administration for his back injury, a hernia, migraine headaches and a sciatic nerve injury.  His 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 - 20030916	VARD - 20050201  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with Muscle Spasm secondary to Multilevel Degenerative Disc Disease	5295	20%	Muscle Spasm with Degenerative Disc Disease (claimed as
Low Back Condition)	5010-5237	20%	20041029	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	NSC	20041029	
COMBINED RATING:  20%	COMBINED RATING OR ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Low Back Pain Condition.  Without history of direct trauma, the CI had various episodes of acute LBP over a 3-year period from 2001-2003, frequently associated with exacerbations that cause pain and paresthesia down one or both legs.  X-rays revealed lumbosacral disc degeneration.  Despite aggressive conservative therapy to include disc electro-thermal therapy, his painful symptoms continued.  He was permanently profiled in August 2003 and referred to a Medical Evaluation Board (MEB).  At the narrative summary (NARSUM) examination (22 July 2003; 4 months pre-separation), the CI endorsed LBP triggered by repeated bending, lifting, sitting or standing in one position or walking at his own pace and distance for more than 15 minutes.  His physical examination (PE) revealed decreased thoracolumbar ROM associated with tenderness and spasms.  The examiner estimated the CI’s prognosis as stable.  At the VA Compensation and Pension (C&P) general examination (29 October 2004; 11 months post-separation), the CI reported constant LBP that radiates into his left leg with flare-ups at least once a week which limits most of his activities.  His comprehensive PE noted the CI to be in obvious pain and walked using a cane.  His thoracolumbar ROM was severely limited and associated with ‘some decreased sensation’ in the left leg L5-S1 dermatome.  His diagnosis remained chronic low back muscle spasm associated with DDD of L5-S1.  

The Board directed its attention to its rating recommendation based on the above evidence.  Board members first considered examination probative value in this case and determined that the NARSUM evaluation had near exclusive probative value due to the close time reference to the date of separation.  Utilizing the 5295 (lumbosacral strain) code, Board members agreed that the totality of the evidence with probative value consideration, the 20% rating level was easily justified by the presence of spasms and limited spinal flexion.  Absent other significant objective findings, the 40% level was not applicable.  The Board also considered code 5293 under the 2003 VASRD, but there was insufficient evidence of “incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.”  Lastly, members agreed that under code 5292, the consistent ROM impairment did not rise above the ‘moderate’ 20% level.  After due deliberation, considering the totality of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB’s adjudication for the chronic LBP condition.  The Board additionally considered if the lower extremity radiculopathy-like symptoms warranted additional disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  The degree of sensory loss in the lower extremity as seen in the low probative value VA examination was considered minimal and not attributing to any functional impairment.  

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine headache 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 headache condition was not permanently profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed and considered by the Board.  The very few clinical encounter documents that included a headache condition were also associated with the diagnosis of dehydration (a condition known to induce headache symptoms) and in each encounter the CI was treated and received symptom resolution.  There was no performance based evidence from the record that a headache condition 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 fitness determination for the migraine headache condition  and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD 2003 spine rules, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended migraine headache condition, the Board unanimously recommends no change from the PEB’s determination as not unfitting.  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 20140501, 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 XXXXXXXXXXXXXXXXXXXXX AR20160006080 (PD201401942)

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