RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02296
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061102

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E1, Cannon Crewmember, medically separated for “chronic low back pain (LBP)…” with a disability rating of 10%.  

CI CONTENTION:  The CI requested consideration of all conditions. 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 based upon a 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 - 20060928	VARD - 20070607	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain (LBP)…	5299-5237	10%	Degenerative Disc Disease(DDD)Lumbosacral Spine	5243	10%	20070118	
Depressive Disorder NOS/Adjustment Disorder with Anxiety	Not Unfitting	Post-Traumatic Stress Disorder (PTSD) with Bipolar Disorder and Obsessive Compulsive Disorder	9411	30%	20070118	
History (Hx) of Anger Control Problems	Not Unfitting					
Insomnia	Not Unfitting					
Hx of Eczema	Not Unfitting	Eczema	7806	10%	20070118	
Hyperlipidemia	Not Unfitting	Hyperlipidemia	7399-7311	NSC	20070118	
Hx of Elevated BP’s…	Not Unfitting	Hypertension	7101	NSC	20070118	
Hx of Alcohol Abuse (EPTS)	Not Unfitting 	No VA Placement	
Smoking (EPTS)	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic LBP.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI developed midline LBP in February 2005 following a Humvee accident in January 2005.  Despite treatment the LBP could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and an MEB referral was made.  The MEB forwarded “chronic mechanical low back pain with small herniated disc at L5-S1” for PEB adjudication.  

The CI was intermittently treated with a non-steroidal anti-inflammatory drug (NSAID); however, his symptoms worsened.  In November 2005, the CI reported LBP that radiated into the posterior aspect of his right leg which was exacerbated by running or siting for prolonged periods.  A lumbar spine X-ray in November 2005 showed narrowing at L5-S1 disc without any apparent fracture.  A lumbar spine MRI done in January 2006 was normal.  The electro-myelogram (EMG) and nerve conduction study (NCS) performed in July 2006 was normal. 

The MEB NARSUM examination on 29 August 2006, approximately 2 months prior to separation, documented that the CI’s right leg radicular symptoms had decreased significantly.  He had daily pain rated at approximately 4/10 which increased to 9/10 with excessive activity, prolonged sitting or heavy lifting.  The MEB NARSUM physical examination findings are summarized in the chart below.  

The VA Compensation and Pension (C&P) examination on 18 January 2007, approximately 3 months after separation, documented that the CI could only stand for about an hour, was limited in walking to only 1/4 mile and he could bend or lift only 50 pounds.  He was unable to wear his gear, he could not pick up artillery equipment and was unable to do any road marches.  He also could not stand on formation and do parade with military activities.  The VA C&P physical examination findings are summarized in the chart below.  Remote VA records indicated a left and right sciatica (lower extremity radiculopathy) rated effective September 2008 and a temporary 100% disability rating due to convalescence from back surgery in 2009.  

There were two goniometric range of motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	MEB ~2 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	80 (79,76,79)	90	
Combined (240)	190	220	
Comment	Gait normal; painful motion; tenderness 	Gait normal; painful motion flexion to 70-80 degrees on repetition (Deluca)	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP condition as analogous to 5237 (lumbosacral strain) and rated at 10%.  The VA coded the DDD lumbosacral spine condition as 5243 (intervertebral disc syndrome) and rated at 10%.  The VA added peripheral nerve ratings (sciatica) effective September 2008 and increased the back rating (surgery) effective August 2009.  These remote ratings were adjudged as post-separation worsening and not indicative of the CI’s level of disability at separation.  

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/or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on all examinations proximate to separation, or tenderness on the MEB examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Electrodiagnostic testing (NCS/EMG) was normal.  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The Board therefore concluded that an 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 LBP condition.  

Contended PEB Conditions:  Depressive Disorder NOS/Adjustment Disorder with Anxiety; History of Anger Control Problems; History of Alcohol Abuse (EPTS); Insomnia; Hyperlipidemia; Elevated Blood Pressures without Diagnosis Of Hypertension; History of Eczema, and Smoking (EPTS).  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended depressive disorder NOS/adjustment disorder with anxiety condition, history of anger control problems, history of alcohol abuse, insomnia, hyperlipidemia, elevated blood pressures without diagnosis of hypertension, eczema, and smoking conditions, 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.  

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 20140514, 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 AR20160013598 (PD201402296)

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