RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02365
BRANCH OF SERVICE:  Army	BOARD DATE:  20140912
SEPARATION DATE:  20050701

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31B/Military Police) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  His profile allowed for an alternate event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded the back condition, characterized as “chronic low back pain with multi-level degenerative lumbar disc disease” and “lumbar disk herniation,” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic radiating low back pain…degenerative disk disease at several levels with a disk herniation at L3/L4” as unfitting, rated at 0%.  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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting radiating low back pain (LBP) condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

The DoDI 6040.44 limits Board’s authority to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to the VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20050502	VA - (~22 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5243	0%	Degenerative Disc Disease, Lumbar Spine	5243	10%	20070414	
Other x0 (Not in Scope)	Other x2 (Not in Scope)	20070414	
Rating:  0%	Rating:  10%	
*Derived from VA Rating Decision (VARD) dated 20070522 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Board notes the earliest VA evaluation was approximately 2 years after the date of separation.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  Therefore the service record evidence was assigned more probative value with respect to the Board’s recommendation.

Lumbar Spine Condition:  The narrative summary (NARSUM) (prepared 5 months prior to separation), noted 3 months of LBP without a specific injury identified.  The pain also radiated into the right leg with associated numbness for approximately a month.  He was evaluated by a neurosurgeon who recommended non-operative treatment.  The CI was treated with non-steroidal anti-inflammatory drugs, muscle relaxers, analgesics and physical therapy.  The radiating right leg pain improved with treatment; however, his LBP persisted.  Magnetic resonance imaging study (obtained 10 months prior to separation), documented several desiccated discs with herniation at the L3-4 level causing moderate to severe bilateral canal stenosis.  The pertinent physical exam findings are summarized in the chart below. 

During the VA Compensation and Pension (C&P) examination (performed 2 years after separation), the CI reported continued aching LBP with no mention of the radiating right leg pain.  His pain was 8/10 in intensity and relieved by resting.  With medication he could function with the pain.  He was not receiving any treatment for his back condition and stated his spine condition did not cause incapacitation.  There was is no functional impairment resulting from the back condition.  The examiner stated “There are no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.”  The pertinent physical exam findings are summarized below.

The goniometric range-of-motion (ROM) evaluations 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 used in NARSUM 5.5 Mos. Pre-Sep	VA C&P ~ 22.5 Mo. Post-Sep	
Flexion (90 Normal)	70	90	
Combined (240)	220	240	
Comment	Pos. painful motion; Normal strength & reflexes, No Waddell’s signs; Ambiguous straight leg raise	Normal posture & gait; No muscle spasm or tenderness; Neg. straight leg raise; No Deluca criteria	
§4.71a Rating	10%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB applied VASRD code 5243, intervertebral disc syndrome and rated it 0% citing “rated for pain-limited motion and no tenderness.”  The VA also applied 5243, rated at 10% for “…painless but slightly limited thoracolumbar spine motion…”  The General Rating Formula for Diseases and Injuries of the Spine takes into account pain whether it radiates or not and requires goniometric ROM measurement IAW §4.46, accurate measurement.  The goniometric exam contained in the NARSUM, along with the additional ratable criteria, was the examination accomplished most proximate to separation.  The VA’s C&P examination was remote from separation and documented normal ROM measurements.  Board members agree that the NARSUM is the most probative document for basing its rating recommendation at the time of separation.  Code 5243 can also be rated based on incapacitating episodes; however, there is no evidence of such episodes in service treatment records.  Based on the ROM measurements documented in the NARSUM and after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the LBP condition.

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.  As discussed above, PEB reliance on DoDI 1332.39 for rating chronic radiating LBP was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the chronic radiating LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5243 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	
Chronic Radiating Low Back Pain	5243	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140520, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150006383 (PD201402365)

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 10% 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: