RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02125
BRANCH OF SERVICE:  Army	BOARD DATE:  20150320
SEPARATION DATE:  20011219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Infantryman) medically separated for a low back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty although he was authorized to perform alternate physical fitness testing.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Lumbar degenerative disc disease (DDD) with low back pain (LBP) and sciatic pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “lumbar degenerative disc disease with low back pain, without significant neurologic abnormality” as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  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 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:

Service IPEB – Dated 20011029	VA* - (1 Mo. Pre -Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD with Low Back Pain	5299-5295	10%	DDD with Lumbar Spine Herniation at L5-S1 with Sciatica	5293	20%	20011129	
Other x 0 (Not In Scope)	Other x 3	
Combined:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20050620 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Condition.  Review of the service treatment record found that the CI experienced an episode of LBP in 1993.  In February 2000 he complained of a right knee injury incurred when a Bradley vehicle he was in hit a ditch.  There was no history of back injury or complaints of back pain at that time.  On 10 January 2001 (11 months prior to separation) the CI complained of the onset of LBP that day which began after running on the treadmill and bending over to tie his boots.  A magnetic resonance imaging study was performed on 30 January 2001 to evaluate complaints of pain radiating to both lower extremities.  It showed a moderately large L5-S1 right sided disc herniation with compression of the nerve root.

A neurosurgical evaluation on 8 March 2001 (9 months prior to separation) recorded that the initially severe LBP was better, and the bilateral lower extremity pain was “basically resolved.”  Examination showed mild weakness of right foot dorsiflexion and decreased sensation in an L5 distribution.  Further conservative treatment was recommended prior to consideration of surgical fusion.  Physical therapy (PT) over the following month noted that the CI was “doing well” and the condition was “resolving.”  The permanent profile on 4 May 2001 permitted unlimited walking, marching up to 5 miles and lifting up to 40 pounds.

The MEB narrative summary (NARSUM) on 8 May 2001 (7 months prior to separation) reported that the back pain was “much better” and that radiating pain to the lower extremities was “essentially resolved.”  Back pain was present intermittently.  He reportedly avoided high impact activities and lifting.  Physical examination showed a normal gait.  Lumbar flexion was limited to 45 degrees (normal to 90 degrees by current standards) and extension to 15 degrees (30 degrees normal).  There was “no myofascial pain” of the back.  A provocative maneuver for nerve root irritation was negative, but there was minor weakness and decreased sensation in a right L5 nerve root distribution.

At the MEB DD Form 2808, Report of Medical Examination, on 26 June 2001, the CI reported that his back pain developed in 2000 when his Bradley vehicle hit a ditch.  He reported an associated right foot numbness that improved with time, and denied foot weakness.  The exam noted diffuse lumbar tenderness and normal lower extremity sensation and muscle strength.

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported that he injured his low back in a Bradley vehicle accident in November 2000.  The injury was associated with bilateral lower extremity radiating pain.  Symptoms improved but did not completely resolve.  The examiner stated that the CI reported current lumbar pain “with radiculopathy” that was present constantly, and waxed and waned through the day.  The CI also reported that he “currently” experienced elbow problems “during load bearing activities, such as weight lifting;” and that his right knee condition was “most evident during…running.”  He used a right knee support “during vigorous physical activity.”  Physical exam showed a normal gait and diffuse lumbar tenderness.  Lumbar flexion was 30 degrees, extension 25 degrees, and right and left lateral flexion 30 degrees (normal 30 degrees by current standards).  Electrodiagnostic studies showed no evidence of right lower extremity radiculopathy.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous code 5299-5295 (lumbosacral strain).  The VA rated the condition 20% using code 5293 (intervertebral disc syndrome) for “recurring attacks of moderate intervertebral disc syndrome.”  The Board agreed the 20% rating stipulation under the 5295 code (“muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position”) was not described by the evidence.  The Board also considered if recurring attacks characteristic of intervertebral disc syndrome were present to a mild or moderate degree, and concluded that mild was the most accurate descriptor; thus a 10% rating was supported using this code.  Finally, a rating under code 5292 (spine, limitation of motion of, lumbar) was examined, and the Board debated if “moderate” or “severe” limitation was reflected by the evidence.  The flexion reported on the C&P exam was significantly reduced, and could support a 40% rating based on current standards, while the flexion noted by the NARSUM was consistent with a 20% rating.  The clinical picture as depicted by PT and the NARSUM examiner was quite different from the “daily and constant” pain as described in the C&P exam.  There was no report by the C&P examiner or in the record of intervening injury or exacerbation.  The Board debated whether a severe limitation of motion was consistent with normal ambulation, and the ability to lift weights, run and participate in vigorous physical activity.  The Board unanimously agreed that the 40% rating was not supported via the 5292 code, while a Board majority concluded that the 20% criteria most accurately depicted the clinical picture.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lumbar degenerative disc disease condition, coded 5292.

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 lumbar DDD with LBP condition, the Board by a majority vote recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Lumbar Degenerative Disc Disease with Low Back Pain	5292	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140512, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX, AR20150012742 (PD201402125)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA