RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02503
BRANCH OF SERVICE:  Army	BOARD DATE:  20150129
SEPARATION DATE:  20060809

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Truck Driver) medically separated for lumbago.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “lumbago” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “lumbago” as unfitting, rated 0%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.” [sic]

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, 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 20060727	VA* - (~6 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbago	5299-5237	0%	Lumbago	5237	10%	20070130	
Other x 0 (Not In Scope)	Other x 2 	
RATING:  0%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20070319 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Lumbago:  The narrative summary (NARSUM) notes the CI to develop low back pain after a motor vehicle accident in September 2005 with some radiation of the back pain to his right and left legs.  A CT scan of the back revealed bulging discs in the lower spine area, but a magnetic resonance imaging of the spine on 16 March 2006, was reported as normal.  The CI had undergone previous resection of a small pilonidal cyst (2in x ¼ in) in the lower sacral area, but this was healed and was not felt to be the source of the back pain condition.  On a clinic evaluation performed on 10 April 2006, the CI had an antalgic gait and used cane.  Tenderness to palpation over the lower spine was present.  Motor strength and sensory exams of the lower legs were normal.  Nerve conduction studies performed on 25 May 2006, revealed a probable spinal nerve neuropathy.  On a clinic evaluation on 15 June 2006, spinal contour, stance, posture and gait were normal.  Motion of the spine produced pain.  Tenderness over the lower spine was present to palpation without muscle spasm.  Motor strength and sensory exams were normal.  On a clinic exam on 21 June 2006, pain on motion of the lumbar spine was recorded.  At the MEB/NARSUM evaluation on 29 June 2006, 2 months prior to separation, the CI reported continued back pain.  Pertinent findings on the MEB physical exam, and the referenced physical therapy evaluation for range-of-motion (ROM) testing on 19 June 2006, are summarized in the chart below.  At the VA Compensation and Pension (C&P) exam, performed 6 months after separation, the CI reported back pain radiating to his left leg and being unable to ambulate without a cane.  He noted 24 days of “incapacitation” from the back condition in the prior 12 months.  On physical examination, the spinal stance and contour were normal without muscle spasm.  Other pertinent findings on this exam are summarized in the chart below.  

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized below.
		 
Thoracolumbar ROM
(Degrees)	MEB ~2 Mo. Pre-Sep
(20060619) 	VA C&P ~6 Mo. Post-Sep
(20070130) 	
Flexion (90 Normal)	110	90 with pain	
Extension (30)	35	20	
Combined (240)	310	210	
Comment	No mention of painful motion or spasm.  Motor, reflexes and gait normal.  No signs of neuropathy	Antalgic gait.  No spasm.  Motor, sensory and reflexes normal.	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and the VA rated the back condition under the same, code 5237, (Lumbar-sacral strain) IAW §4.71a but at different levels:  the PEB rated 0%, citing a normal ROM; and the VA rated 10%, citing ROM limited by pain.  Under this code, a rating of 10% requires forward flexion of the lumbar spine greater than 60 degrees, but not greater than 85 degrees.  The next higher rating, 20%, requires flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees.  The next higher rating, 40%, requires flexion of the lumbar spine of 30 degrees or less.  The Board considered a rating under ROM criteria, IAW §4.71a.  The Board noted the mild disparity between the findings of the NARSUM, 2 months prior to separation, and the VA exam, 6 months after separation.  The Board gave higher probative value to the NARSUM exam in its recommendations given its closest temporal alignment with the date of separation, which must remain as the Board’s definitive benchmark.  Based on this data, the Board unanimously agreed that no recommendation under ROM criteria could be made.  The Board agreed that the record reasonably supported a rating of 10%, but no higher, for painful motion IAW §4.59.  The Board considered a rating IAW §4.123 (Neuritis, peripheral nerve).  The Board agreed there was a peripheral neuropathy in this case but it was not ratable as a peripheral nerve impairment since no motor weakness was present, sensory symptoms had no functional implication and radiation of pain was subsumed under the back rating IAW §4.71a.

The Board noted the report of the CI in the C&P examination of 24 days of incapacitation in the prior 12 months for the back condition and considered a rating under code 5243, (Incapacitating Episodes/Intervertebral Disc Syndrome).  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician.  Under this code a 10% rating requires incapacitating episodes having a total duration of 7 to 13 days in the past 12 months.  A higher rating of 20% requires episodes having a total duration 14 to 27 days in the past 12 months.  The record in evidence documented no incapacitation under this definition in the 12-month period prior to the MEB examination.  The Board agreed that no rating could be recommended under this code.  The Board found no other appropriate codes for consideration and no pathway to a rating higher than 10% for the back condition.  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 back 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 back condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD. §4.71a and §4.59.  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:

CONDITION	VASRD CODE	RATING	
Lumbago 	5237	10%	
COMBINED	10%	

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

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150010615 (PD201402503)

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:

Encl		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA