RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02385
BRANCH OF SERVICE:  Army	BOARD DATE:  20150416
SEPARATION DATE:  20080710

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Food Service Specialist) medically separated for a low back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty, but she was authorized to perform alternate physical fitness testing.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Chronic low back pain with scoliosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic low back pain with scoliosis 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:

IPEB – Dated 20080319	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Mild Levoscoliotic Curvature with Lumbago	5299-5237	10%	20080829	
Other x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20081027 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain (LBP).  This CI has had a long history of LBP.  Radiographic imaging of the spine showed scoliosis.  She was treated with medication, physical therapy, and chiropractic manipulation.  In spite of all treatment efforts her LBP persisted, and MEB was initiated.  The MEB physical examination (PE) was in January 2008, 6 months prior to the DOS.  The CI reported that her back pain was worse with prolonged sitting, standing, or driving; and improved with heat or lying down.  On PE, she was in no acute distress.  Her gait was mildly antalgic.  There was mild tenderness in the mid-thoracic and lumbosacral areas.  Seated straight leg raise was negative.  Gross motor strength and deep tendon reflexes were normal.  Range-of-motion (ROM) was measured and is summarized in the chart below.

The CI was medically separated from service on 10 July 2008.  Approximately 2 months later, on 29 August 2008, she had a VA Compensation and Pension (C&P) exam.  She reported daily LBP.  The pain was worse with cold weather, standing, lying, bending, and driving.  The LBP interfered with her ability to carry her son and play with him.  She denied any incapacitating episode over the previous 12 months.  On PE, she was in no acute distress.  Her gait was steady and smooth.  Neurological exam was normal.  Her ROM was measured.  Thoracolumbar forward flexion was 90 degrees with painful motion.  Repetitive motion produced increased pain, weakness, lack of endurance, fatigue, and incoordination, but did not limit her ROM.

The ROM evaluations in evidence which the Board weighed in arriving at its recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 6 mos. Pre-Sep
(20080117)	VA C&P ~ 2 mos. Post-Sep
(20080829)	
Flexion (90 Normal)	80	90	
Extension (30)	15	30	
R Lat Flexion (30)	15	30	
L Lat Flexion (30)	(30) 40	30	
R Rotation (30)	(30) 60	30	
L Rotation (30)	(30) 115	30	
Combined (240)	200	240	
Comment	Painful motion	Painful motion	
§4.71a Rating	10%*	10%*	
		*10% rating IAW VASRD §4.59 (painful motion)

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, both the Army PEB and the VA chose VASRD code 5299-5237 (analogous to lumbosacral strain) and both assigned a disability rating of 10%.  The 29 August 2008 C&P exam was performed approximately 2 months after separation, and therefore had significant probative value.  At that exam, the CI’s thoracolumbar forward flexion was 90 degrees, with painful motion.  Combined thoracolumbar ROM was 240 degrees.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, the LBP condition was essentially non-compensable based solely upon the thoracolumbar ROM measurements.  However, IAW §4.59 (painful motion) a disability rating of 10% is warranted.

The Board tried to find a path to a higher rating but there was no sufficient evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The Board considered using other 4.71a (Schedule of rating – musculoskeletal system) codes which could be applied to the CI’s condition.  There was no evidence of incapacitating episodes for a rating under the VASRD intervertebral disc with incapacitating episodes rating formula.  Other VASRD codes did not result in a higher rating, since the record did not show sufficient evidence of a disabling back abnormality which would justify a higher rating.

The Board also considered the matter of radiculopathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the chronic 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.  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 chronic LBP condition and IAW VASRD §4.59, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  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 20140522, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
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, AR20150014455 (PD201402385)

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:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA