RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02492
BRANCH OF SERVICE:  ArMY 	SEPARATION DATE:  20070718

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for “chronic low back pain,” with a disability rating of 10%.

CI CONTENTION:  “Please consider 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 - 20070607	VARD - 20071120  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Chronic Lumbar Pain Syndrome with Degenerative Disc Disease, Residuals of Lumbar Surgery L3-L5, Intrathecal Catheter	5003-5237	40%	20070920	
			Incontinence, Urinary	7599-7517	20%	20070920	
			Paresthesia and Hypoesthesia, Left Leg	8799-8720	20%	20070920	
			Paresthesia and Hypoesthesia, Left Leg	8799-8720	20%	20070920	
			Erectile Dysfunction	7522	0%	20070920	
Mild Post-Traumatic Stress Disorder (PTSD)	Not Unfitting	Post-Traumatic Stress Disorder 	9411	70%	20070920	
Chronic Intermittent Right Shoulder Pain	Not Unfitting	Right Shoulder Condition	5299-5203	NSC	20070920	
Chronic Intermittent Knee  Pain	Not Unfitting	Patellofemoral Syndrome, Left Knee	5299-5261	NSC	20070920	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain:  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s was deployed to Iraq from August 2004 to July 2005 and his low back pain condition began in September 2004, while on night patrol duty, he fell into a hole.  A week later he fell off a wall and hurt his back again.  The CI developed pain that radiated to both lower extremities.  Neuroimaging showed degenerative changes of L3-4, L4-5, and L5-S1 disks with mild left lateral recess stenosis at L3-4, bilateral recess stenosis at L4-5, and more slight recess stenosis at L5-S1.  Physical therapy and steroid injections were not helpful.  He was not a candidate for surgery.   An anesthesiologist installed an intrathecal pump containing morphine and an anesthetic in October 2006.  It was successful but required frequent monitoring and had to be changed in 5 years.  Pain level declined from 8-9 out of 10 to 2-3 out of 10.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic low back pain with evidence of multilevel bulging disks and presence of infusion pain pump” for PEB adjudication. 

The MEB NARSUM examination on 28 February 2007 (5 months prior to separation), the CI reported that he felt that he was doing fairly well though, he was advised not to do any jumping, running, sit-ups or marching.   He had constant pain and was uncomfortable with prolonged sitting like on a car trip. He could use a stationary bicycle.  Physical examination showed no tenderness in the midline and no appreciable spasm or deformity.  The CI had chronic low back pain with forward flexion of 90 degrees (normal 90) and extension of 14 degrees (normal 30).  The CI had not worked in his Military Occupational Specialty (MOS) since March 2006 but was managing the schools and training of other Soldiers and managing Soldiers who were absent without leave.  He could not comfortably run, do sit-ups, march, or jump.  

The commander’s statement noted his performance was severely impaired by his injury (herniated disks and pain pump) and he was unable to perform duties of his MOS due to his lack of mobility.  Any strenuous physical activity resulted in extreme pain, numbness in his lower body and an inability to use his legs.  He was excused from work many days due to pain, weakness and lethargy caused by his condition and necessary medications.  A family medicine note, dated April 2007, noted the intrathecal catheter had been replaced due to dislodgement on 16 April 2007.  The CI had reported three bouts of urinary incontinence. 

At the 20 September 2007 VA Compensation and Pension (C&P) Genitourinary examination, performed 2 months after separation, the CI reported urinary incontinence, bowel incontinence, episodic hesitancy, and erectile dysfunction since the surgery.  The examiner opined the incontinence and erectile dysfunction were more likely related to surgical effects status post intrathecal implant given onset after surgery.  At the 21 September 2007 VA Compensation and Pension (C&P) Orthopedics examination the CI reported constant low back pain, sharp in quality, fluctuating with activity but usually 8/10.  He intermittently had radiating pain into his legs with paresthesia in a non-dermatome distribution.  The CI reported significant back pain after walking 100-200 feet requiring a rest period and used a walking stick.  He attributed erectile dysfunction and urinary incontinence to the morphine pump.  The CI developed back pain/stiffness after a half hour car ride.  He had difficulty putting on shoes and socks.  He was unemployed and did not experience flare-ups.  He was not receiving direct care for his spine conditions.  He took no additional medications to control joint pain.  Physical examination showed a wide based slow gait but no limp or deformity.  He showed pain avoidance behavior during the interview e.g. postural changes.  There was diffuse para spinal tenderness, no muscle spasm, a midline incision over the lower lumbar area, and no ankylosis.  Range of motion (ROM) showed flexion of 60 degrees (normal 90) and pain from 30-60 degrees, and a combined ROM of 120 degrees (normal 240).  Straight leg raising was positive at 50 degrees, muscle strength was normal with normal muscle tone, and no thigh or calf atrophy.  Reflexes and sensation were normal.
The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating for chronic low back pain condition, multilevel bulging disks and presence of infusion pain pump under the 5237 code (lumbosacral strain) citing loss of motion.  The VA assigned a 40% rating for lumbar pain syndrome with degenerative disc disease, intrathecal catheter, using the analogous 5003-5237 code based on the VA C&P examination 2 months after separation.  The examiner cited forward flexion of the spine of 0-60 degrees and combined range of motion of 120 degrees, which meet 20% criteria.  The Board relied more heavily on the VA C&P examination ROM measurements as being of higher probative value more proximate to the date of separation.  The Board agreed that a 20% rating, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees as well as combined flexion of 120 degrees reported on the 9 October 2007 VA C&P examination.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lumbosacral strain condition, coded 5237.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported intermittent radiating pain and numbness with activities down his legs; however electro-diagnostic studies were not in evidence.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

Contended PEB Conditions:  Mild PTSD, Chronic Intermittent Right Shoulder Pain, and Chronic Intermittent Knee Pain.  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 low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended mild PTSD, chronic intermittent shoulder pain, chronic intermittent knee pain 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120519, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX AR20160016870 (PD201402492)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA