RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02344
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070519

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Infantryman, medically separated for “chronic back pain” with a disability rating of 10%.   

CI CONTENTION:  His condition continues to worsen.  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 – 20070419	VARD - 20080130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5243	10%	Degenerative Disc Disease, Lumbar Spine L3-4 & L4-5	5243	10%	20071126	
COMBINED RATING:  10%	RATING:  20%	

ANALYSIS SUMMARY:

Low Back Pain.  The service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM) indicated the CI had low back pain since basic training and was worse in airborne school when he was seen in the Emergency Room on 10 September 2006.  Magnetic resonance imaging (MRI) on 2 October 2006 showed lumbar disc herniation at L3-4 and L4-5 with lateral recess impingement at each level and L3-L4 spinal stenosis.  Treatment consisted of Motrin (a nonsteroidal anti-inflammatory drug) and Percocet (oxycodone, a narcotic and acetaminophen, a pain reliever).  Physical therapy was carried out for at least 2 months.  Neurological evaluation revealed acute lumbar radiculopathy at the L5 level on the right and subacute lumbar radiculopathy on the left.  Electrodiagnostic studies were consistent with subacute left L5/S1 posterior ramus radiculopathy, but were limited due to the CI’s concern during the needle examination.  In January 2007 neurosurgical evaluation indicated the CI was found not to be a surgical candidate and it was mentioned that there was minimal probability for return to duty following a level 2 fusion, if such were done.  At an orthopedic evaluation, on 2 April 2007, flexion and extension were decreased 50% and motor strength, sensation and reflexes of both lower extremities were normal.  

The commander’s statement, dated 12 January 2007, indicated that after the CI was diagnosed with “a case of severe herniated disk” he was placed on a permanent profile disqualifying him from performing his job.  A permanent L3 profile was issued on 29 January 2007 for herniated discs L3-L4 and L4-L5 with limitations of all physical fitness testing and all military functional activities.  Additional restrictions included no rucksack or body armor, no combatives, no standing greater than 20 minutes per hour and no lifting or carrying more than 25 pounds.

The MEB NARSUM examination, dated 6 April 2007, approximately 1 month before separation, indicated the CI reported his condition was getting worse, but he had no deformities, instabilities or mechanically limited joint movements.  He did not refill the Percocet due to side effects and received Robaxin (methocarbamol, a muscle relaxer) in its place.  At the MEB examination the CI noted on DD Form 2807-1 Report of Medical History he had 2 herniated discs in his lower back, which had been hurting him since May 2006 and prevented him from doing his job.  An examination was conducted on 22 February 2007; and reported on a DD Form 2808, Report of Medical Examination and in a NARSUM Addendum dated 6 April 2007.  The thoracolumbar spine exhibited no scoliosis, gross deformities, tenderness or muscle spasm; and lordosis was present.  The range of motion (ROM) measurements were flexion limited to 70 degrees, extension greater than 30 degrees, right and left flexion greater than 30 degrees, and left and right rotation greater than 30 degrees.  Straight leg raise (to determine nerve root irritation) was 80 degrees bilaterally with left paraspinous pain on both ipsilateral and contralateral leg elevations.  Sensation was intact and symmetric and muscle strength was normal except for the left extensor hallucis longus (muscle to extend the toe) seemed slightly decreased (5-/5).  The examiner noted that he believed he detected trace left sided weakness whereas another examiner detected right-sided weakness, and a third examiner noted no weakness.  Reflexes, gait, and blindfolded gait were normal as were the heel walk, toe walk and tandem gait.  

At the VA Compensation and Pension (C&P) examination dated 26 November 2007, approximately 6 months after separation, the CI reported chronic, daily lumbar back pain, with intermittent radiation into the buttock and thigh region, which was worse with sitting and lifting; however, he did not have any incapacitating episodes in the prior 12 months and had no motor weakness, sensory loss, bladder or bowel incontinence or sphincter problems.  He did develop mid-thoracic back pain post-separation, which hurt with certain movements.  A thoracic spine X-ray on 6 November 2007 demonstrated a minimal anterior wedging of a mid-thoracic vertebral body with minimal small marginal osteophytes in the thoracic spine region.  On examination the CI’s gait was normal.  There was slight tenderness and definite muscle tightness in the right paralumbar muscles and right sciatic tenderness and tenderness over the vertebrae of the mid-thoracic spine without muscle spasm.  Flexion of the thoracic spine was 0 to 45 degrees with pain beginning at 30 degrees.  The thoracolumbar spine ROM measurements were flexion 0 to 75 degrees with pain beginning at 60 degrees and extension 0 to 40 degrees with tightness without pain.  With repetition flexion was reduced to 73 degrees and extension to 37 degrees.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5243 (intervertebral disc syndrome) for chronic back pain.  The VA assigned a 10% rating using code 5243 for degenerative disc disease, lumbar spine.  

The Board noted an orthopedic examination approximately 2 months prior to separation reported flexion and extension were both decreased 50%.  However, VASRD §4.46 requires an accurate measurement and “the use of a goniometer is indispensable.”   Therefore, the findings of “decreased 50%” does not comply with the VASRD and is not clear from what measurement is decreased, although it is a reasonable supposition that it is from VASRD normal ROMs for flexion and extension, but then again, it may be speculative.  Furthermore, the 50% decrements assuming they are from the normal ROMs, both examinations in the chart prior to and post-separation are only 5 degrees apart at 70 degrees and 75 degrees respectively and there is no explanation such as an injury, infection, or procedure in the record to explain the transient decreased ROMs.  In the absence of ankylosis, an accurate measurement of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined ROM of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or episodes of incapacitation.  The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  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 low back pain condition.

BOARD FINDINGS:  In the matter of the low back pain 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 20140519, 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 AR20160010930 (PD201402344)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (000 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